RASHEED v CHRYSLER CORPORATION
Docket Nos. 95122, 95774
Supreme Court of Michigan
Decided May 17, 1994
445 Mich 109
Argued November 3, 1993 (Calendar No. 10).
In an opinion by Justice RILEY, joined by Chief Justice CAVANAGH, and Justices BRICKLEY, BOYLE, GRIFFIN, and MALLETT, the Supreme Court held:
Because the trial court made its decision regarding the appropriate remedy before all factual issues were decided, remand is required to resolve the issue of the reasonableness of the plaintiff‘s rejection and a reassessment of the appropriate remedy. The trial court properly denied the defendants’ motion for a directed verdict on the claim of intentional discrimination because factual questions remained.
1. Trial courts have wide discretion to fashion appropriate remedies in wrongful discharge cases. A discharged employee has a duty to mitigate damages. Failure to do so, whether by failing to seek other suitable employment or by rejecting an unconditional reinstatement offer, is an affirmativе defense to be established by the employer. Whether an employee acted reasonably in not seeking or accepting particular employment is to be decided by the trier of fact.
2. Reinstatement offers that are clear on their face may be
3. Once it is established that a reinstatement offer is unconditional, a rebuttable presumption arises that its rejection is unreasonable. To rebut, the employee must offer reasonable grounds for rejection that are based on the employment as contemplated by the offer rather than for purely personal reasons. Failure by the claimant to provide a legitimate basis for a rejection forfeits the right to front pay. In this case, the issue of the reasonableness of the plaintiff‘s rejection was improperly removed from the jury. Thе trial court erred as a matter of law in deciding the continued backpay issue before the factfinder decided the defendants’ ultimate liability for the alleged discriminatory discharge, requiring reversal of the Court of Appeals decision and remand to the trial court for reconsideration of the issue of reasonableness and the appropriate remedy.
4. A claimant asserting an intentional discrimination claim must establish as part of a prima facie case a discriminatory predisposition of the employer and an act in furtherance of this predisposition. In this case, the decision to terminate the plaintiff was made entirely on the basis of the supervisor‘s report, and the court properly allowed the plaintiff to offer proof that the reason asserted was a mere pretext. In unique circumstances, ordinarily neutral mechanisms for termination may qualify as discriminatory employment practices. The facts of this case constitute such unique circumstances. Reasonable jurors could have reached different conclusions regarding whether the labor relations manager was aware of the alleged discrimination and acted in furtherance of it.
Reversed and remanded.
Justice LEVIN, writing separately, stated that federal case law does not support the proposition that Michigan courts have
In wrongful discharge cases, separate determinations of the conditionality of a reinstatement offer and of the reasonableness of a rejection need not be made. In deciding whether a prevailing plaintiff may recover damages for a period following the rejection of an offer of reinstatement, the trier of fact need only determine whether the plaintiff failed to mitigate damages, as is required in other wrongful discharge cases in Michigan and in the federal system where the alleged failure to mitigate concerns the plaintiff‘s rejection of an offer of employment by the original employer that differs from the original job or when the plaintiff reasonably refuses to accept an offer of employment from another company. The issue of the conditionality of a reinstatement offer does not become a matter of law to be decided by the court simply because the employer has offered to reinstate the discharged employee. Assuming that whether an offer of reinstatement was conditional and whether the plaintiff acted reasonably in rejecting such an offer are proper are separate inquiries, each inquiry presents a question of fact for the trier of fact, and neither may be resolved by the court as a matter of law unless reasonable minds could not draw different conclusions concerning conditionality or reasonableness.
Section 801 does not provide that the courts of this state may provide an equitable remedy such as injunctive relief or a damage remedy, as the court thinks best in the exercise of its discretion. Rather, it provides that a person alleging a violation of the Civil Rights Act may bring a civil action for appropriate injunctive relief, or damages, or both. The discretion whether
The majority has an extravagant view of judicial power in concluding that it may arrogate to the trial courts of this state the power—so clearly confided by the constitution and the Legislature to the victim of a civil rights violation—whether to seek an equitable remedy as an alternative to a legal remedy. While a fair degree of discretion on the part of the trial court might be necessary to make whole a victim of discrimination who seeks an equitable (injunctive) remedy, that does not mean that, where the victim seeks a legal (damage) remedy in the exercise of the choice confided to the victim by the constitution and the Civil Rights Act, the Supreme Court is empowered to confide to the courts of this state a degree of discretion, in the name of making the victim of discrimination whole, to deny the victim of the choice of a legal (damage) remedy.
United States Courts of Appeals, construing the federal statute, have not found it necessary to create a bifurcated or trifurcated procedure. The majority simply prefers to confide to trial courts, and to remove from jury consideration, questions that it is more comfortable having a judge decide. This is judicial legislation, an arrogation of power to the courts in an area in which the majority does not trust the jury. There is ample power under the traditional approach that permits a trial court to remove from jury consideration any issue of fact that, in the judgment of the trial court, all reasonable persons must reach but one result.
196 Mich App 196; 493 NW2d 104 (1992) reversed.
Durant & Durant, P.C. (by Richard Durant), for the plaintiff.
Dickinson, Wright, Moon, Van Dusen & Freeman (by John Corbett O‘Meara, Robert W. Powell, Noel D. Massie, and Eric J. Pelton) for the defendants.
Amicus Curiae:
Clark, Klein & Beaumont (by Dwight H. Vincent and J. Walker Henry) for Michigan Manufacturers Association.
I
Plaintiff began his employment with Chrysler in 1967 at the Huber facility in Detroit. In 1978, plaintiff converted to the Muslim faith. Three years later, plaintiff was transferred to Chrysler‘s Trenton engine plant where, according to plaintiff, he was subjected to religious and racial harassment from the first day when guards at the plant allegedly attempted to stop him from taking an Islamic newspaper into the facility because it was “subversive,” being called “Ayatollah Cockamania” by his supervisor and alleged major antagonist James Senart, the purposeful placing of pork near his work station during the holy month of
According to plaintiff, the anti-Muslim atmosphere culminated on July 12, 1984, in a setup orchestrated by Senart and intended to get plaintiff fired from his employment. Senart was allegedly baiting plaintiff,4 and other employees were improperly removing a storage bin, called a head divider, from plaintiff‘s work area. When plaintiff retrieved the head divider, Senart allegedly rebuked him for taking it away from another work station. According to defendants, plaintiff kicked the head divider and threw two engine heads onto the ground with such damaging force that they could not be repaired. Senart wrote up a report on
Charles Fern, the labor relations manager at the Trenton plant, reviewed Senart‘s report and attempted to interview plaintiff‘s co-workers.5 Fern inspected the two engine heads that were indeed damaged, and he looked at two grooves in the floor of plaintiff‘s work area that were allegedly caused by plaintiff‘s act of hurling the engine heads to the ground. Fern also spoke to union representatives and other supervisors. As a result of his investigation, Fern concluded that plaintiff had destroyed company property, and the disciplinary leave was upgraded to termination of employment.
Plaintiff filed the instant action in Wayne Circuit Court against Chrysler and Senart for wrongful discharge based on racial and religious discrimination, for intentional infliction of emotional distress, and for fraud or misrepresentation on the part of Senart. Before trial, the court ruled that any damages awarded to plaintiff would be limited to the thirteen-month period of his unemployment preceding his rejection of Chrysler‘s reinstatement offer.6 At trial, the court granted defendants’ motion for a directed verdict on all but the religious discrimination claim. The jury returned a verdict in favor of plаintiff on the religious discrimination claim and awarded him $51,300 for lost wages and
Defendants appealed the court‘s decision not to grant the motion for a directed verdict on the religious discrimination claim, as well as the order requiring plaintiff‘s reinstatement as a newly hired employee. Plaintiff cross appealed the court‘s refusal to permit recovery for acts occurring before the three-year period of limitation running from the date of termination and for the decision not to reinstate plaintiff with full seniority rights and backpay.
A majority of the Court of Appeals upheld the trial court‘s decision not to grant defendants’ motion regarding the religious discrimination claim, and it upheld the trial court‘s “equitable power” to fashion the remedy of reinstatement, albeit without any seniority rights. 196 Mich App 196, 200; 493 NW2d 104 (1992). The majority also upheld the ruling of the limitation of backpay to the thirteen-month period before plaintiff‘s refusal to accept Chrysler‘s reinstatement offer. Finally, the majority concluded that plaintiff failed to establish all of the elements necessary to invoke the “continuing violation” theory, which would have permitted plaintiff to recover for alleged acts that occurred more than three years before the filing of the complaint. The dissenting judge, relying heavily on federal precedent, would have reversed the trial court‘s decision to reinstate plaintiff for what he considered to be an unreasonable refusal to accept Chryslеr‘s “unconditional” offer of reinstatement. Id. at 210.
II
A
One year and three months after his termination, Chrysler offered to reinstate plaintiff to his former position with full seniority, but without backpay. The offer provided in its entirety:
In full settlement of this case, M. Rasheed will be offered reinstatement in accordance with his seniority provided he can meet normal requirements. Upon his return to work his discharge shall be reduced to a disciplinary layoff without back pay for the period during which he was away from the plant.
This action of the Appeal Board shall form no basis or precedent for a decision or settlement in any other case.
On the basis of this offer, defendants moved for partial summary disposition to prevent plaintiff from recovering continued backpay8 for a failure to accept what they asserted was an “unconditional” offer, as well as to prevent plaintiff‘s reinstatement. Plaintiff asserted that the offer was conditional because it did not include backpay and
At the hearing on the motion itself, the trial court concluded as follows:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Defendant‘s Motion is granted as it concerns limiting backpay that Plaintiff can seek, to that period covering July 19, 1984, up to and including August 26, 1985.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant‘s Motion as it concerns the preclusion of reinstatement for Plaintiff is denied, and Plaintiff will be allowed to present proofs concerning the equitable issue of reinstatement to the trier of fact.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that notwithstanding any ruling on reinstatement оf the submission of proofs, Plaintiff‘s backpay is limited to the aforementioned July 19, 1984 to August 26, 1985 period.
It is unclear from this ruling what was the basis for the trial court‘s conclusion that plaintiff rejected an unconditional offer so that he was not entitled to continued backpay, but that the issue of reinstatement was a question to be decided by the finder of fact. In addressing this issue, we turn first to a discussion of the relevant case law.
B
The law concerning backpay and other remedies in the employment discrimination context has its roots in provisions of the federal Civil Rights Act of 1964, which amended the Civil Rights Act of
Almost a decade later, however, the United States Supreme Court recognized a corollary to the backpay provision on the basis of interim earnings language found in
An unemployed or underemployed claimant, like all other Title VII claimants, is subject to the statutory duty to minimize damages set out in § 706(g). This duty, rooted in an ancient principle of law, requires the claimant to use reasonable diligence in finding other suitable employment. Although the unemployed or underemployed claimant need not go into another line of work, accept a demotion, or take a demeaning position, he forfeits his right to backpay if he refuses a job substantially equivalent to the one he was denied. Consequently, an employer charged with unlawful discrimination often can toll the accrual of backpay liability by unconditionally offering the claimant the job he sought, and thereby providing him with an opportunity to minimize damages. [Id. at 231-232. Emphasis added.]
According to the majority, this duty provides in-
Thus, a reinstatement offer, in order to be considered “unconditional” for federal purposes, need not include an offer of retroactive seniority, which may nonetheless be awarded if the claimant is successful in an employment discrimination claim. Id. at 232-233.14 However, a claimant does not violate the duty to mitigate damages by refusing to accept a position that is an unreasonable distance from his home,15 to accept a position that is not the substantial equivalent of the one sought or from which he was terminated,16 or to accept an offer with any other unreasonable condition attached to it.17 Generally, it is the duty of the trier
Under title VII, the federal courts have wide discretion to fashion a remedy in a discriminatory hiring or discharge case.18 For example, the award of backpay is treated as an equitable remedy to be decided as a matter of law. Albemarle, supra at 417; 2 Larson, Employment Discrimination, § 55.32, pp 11-96.2 to 11-96.4. A court‘s decision on the issue of backpay is a matter of discretion, and may only be reversed for abuse. Albemarle, supra at 415-416; Larson, supra, § 55.33, pp 11-96.4 to 11-96.7. At least one circuit court has stated that this discretion permits a denial of backpay accruing before the reinstatement offer as well as front pay. O‘Donnell, supra at 1550.19 On the other hand, a
On the issue of reasonableness, a claimant required to make reasonable efforts to mitigate damages is not held to the highest standards of diligence. Rasimas v Dep‘t of Mental Health, 714 F2d 614, 624 (CA 6, 1983), cert den 466 US 950 (1984). Moreover, “the claimant‘s burden is not onerous, and does not require him to be successful in mitigation.” Id. Finally, the burden of proof on this question shifts to the employer once a prima facie case of employment discrimination has been established. Id. at 623-624.
C
The approach of state courts on the issue of backpay/continued backpay is in harmony with that utilized by the federal courts.20 First, this jurisdiction recognizes a duty of a discharged employee to mitigate damages. See Shiffer v Gibraltar School Dist Bd of Ed, 393 Mich 190, 197; 224 NW2d 255 (1974) (“The principle of mitigation is a
We conclude, therefore, that the crux of this case concerns the subtle interplay between a court‘s broad equitable powers to fashion the appropriate remedy in cases of discriminatory discharge and the factfinder‘s function of determining whether the rejection of a reinstatement offer was reasonable. As stated earlier, the trial court, without indicating the basis for its decision, held that plaintiff‘s right to continued backpay was terminated by the “unconditional” offer of reinstatement, but that the issue of reinstatement was a question to be decided by the trier of fact. Critical to our effort to reconcile this ruling are the underlying contractual principles relevant to this area of the law. Thus, it is to a consideration of these principles that we next turn.
III
A
Over the years, various legislatures and the courts have added certain restrictions to the contractual relationship between employer and employee in cases where ordinary contract law did not adequately protect important rights of the parties. Examples are the law on discriminatory discharge, which has been the topic of numerous regulations,22 guidelines on the right of labor to
A reinstatement offer that is clear on its face may be construed as a matter of law by the courts.26 Where the language of the reinstatement offer is properly characterized as “ambiguous,”27 construction is permitted. Berk v Gordon Johnson Co, 232 F Supp 682, 687 (ED Mich, 1964). Where it becomes necessary to consider the parties’ intent, the inquiry is a question of fact. Liberty Mutual Ins Co v Curtis Noll Corp, 112 Mich App 182, 191; 315 NW2d 890 (1982); Robinson v AZ Shmina & Sons Co, 96 Mich App 644, 649; 293 NW2d 661 (1980); 17A Am Jur 2d, Contracts, § 339, p 346.28 Against this backdrop, we now turn to the interplay between the conditionality of a reinstatement offer and the reasonableness of a rejection.
In a number of federal cases, the courts appear to have decided whether a condition was reasonable so that rejection of the reinstatement offer cut off the right to continued backpay. Careful review of these cases, however, indicates that these decisions were made following review of the trial
On the basis of the foregoing, we conclude that the issues of conditionality and reasonableness of rejection are discrete under the federal as well as the state systems.32 While the conditionality issue may be decided by the courts as a matter of law
On the other hand, we do not wish to trivialize the importance of the mitigation doctrine. It is well established that a discharged employee must
At this juncture, there is another inherent conflict that must be considered, to wit: the policy behind creating an incentive for discharged employees to mitigate damages as provided in Ford Motor Co37 and the law of affirmative defenses, which places the burdens of pleading and proof on
Today we adopt a middle ground that attempts to reconcile these competing interests. Thus, we hold that once it is established that a reinstatement offer is unconditional, a rebuttable presumption arises that the rejection of the offer is unreasonable. To rebut, an employee must offer reasonable grounds for rejection that are grounded in the employment as contemplated by the reinstatement offer and not a purely personal reason.40
In so holding, we shift to a claimant the burden of production, i.e., reasonable grounds for rejection, without shifting the burden of proof on the issue of mitigation. The failure of a claimant to provide a legitimate basis for а rejection forfeits the right to front pay for the reason that a rejection unrelated to conditions of employment under the reinstatement offer would be based on personal choice and would therefore be unprotected by discrimination laws. See pp 129-130. In this way, we honor the policy behind Ford Motor Co without violating the law surrounding the affirmative defense of damage mitigation.41
B
In this case, the issue of reasonableness concerning plaintiff‘s rejection was improperly removed from the jury by way of the grant of partial summary disposition. As defendants point out, an award of front pay and an award of reinstatement are two sides of the same coin.42 Thus, the choice between these two remedies, if warranted at all under the circumstances of a particular case, can only be made after the other issues have been resolved. Both center on the question whether a rejection of a reinstatement offer was reasonable.
We are persuaded that the trial court was exer-
Accordingly, we reverse the Court of Appeals holding in this regard and remand to the trial court for reconsideration of the reasonableness issue and the appropriate remedy.44
IV
Plaintiff also appeals the trial court‘s ruling that he could not avail himself of the continuing violations doctrine in order to recover for alleged, discriminatory acts occurring before the three-year period of limitation. According to plaintiff, defendants waived the statute of limitations defense for failure to raise it as required by the court rules. Defendants argue that the defense was preserved
V
Finally, defendants also argue that they were entitled to a directed verdict because the decision to terminate plaintiff was made by someone who based the decision on Senart‘s report and not on any discriminatory animus. It is true that a claimant asserting an intentional discrimination claim must establish a discriminatory predisposition of the discharging party and an act in furtherance of this predisposition as part of a prima facie case.45
In this case, Charles Fern made the decision to terminate plaintiff for destruction of company property entirely on the basis of the report created by Senart. There are no allegations that Fern engaged in any discriminatory behavior. However, plaintiff offered evidence that Fern was made aware of the alleged discriminatory treatment of plaintiff on numerous occasions. Moreover, the record indicates that other employees refused to discuss the incidents of July 12, 1984, with Fern.
We believe that the trial court properly allowed plaintiff to offer proof that Fern‘s reason for discharge was a mere pretext. This Court has already ruled that ordinarily neutral mechanisms for termination may, in unique circumstances, qualify as
Accordingly, we agree with the Court of Appeals that reasonable jurors could have reached different conclusions on the issue whether Fern was aware of the alleged discrimination and whether he acted in furtherance of it, which translates into a predisposition to terminate for discriminatory reasons.
CONCLUSION
In sum, we affirm the trial court‘s denial of defendants’ motion for a directed verdict on the intentional discrimination claim. However, because the trial court made its decision regarding the appropriate remedy before all factual issues were decided, we remand for resolution of the reasonableness of rejection issue and a reassessment of the appropriate remedy. And, finally, because we find that defendants waived the statute of limitations defense on the continuing violations claim, we do not address plaintiff‘s claim.
CAVANAGH, C.J., and BRICKLEY, BOYLE, GRIFFIN, and MALLETT, JJ., concurred with RILEY, J.
LEVIN, J. (separate opinion). I concur in the result of the majority opinion, which remands for further proceedings. I write separately because I
I
The majority asserts that Michigan courts have broad discretion to fashion appropriate remedies in wrongful discharge cases.1 The majority cites in support the following provision of the Civil Rights Act:
A person alleging a violation of this act may bring a civil action for appropriate injunctive relief or damages, or both. [
MCL 37.2801(1) ;MSA 3.548(801)(1) .]
The cited provision—stating that a person alleging a violation of the Civil Rights Act has a choice whether to seek injunctive relief or to seek damages—supports, rather, the view that the court has no discretion. It would appear that where a plaintiff brings an action seeking damages, it is for the trier of fact to decide whether there has been a violation of the Civil Rights Act and the damages to be awarded therefor.
In the instant case, the plaintiff does not seek damages for “front pay.” He sought and continues to seek reinstatement. There is, therefore, no need to decide whether the Civil Rights Act should be read as granting a court, in a case in which the plaintiff brings an action seeking damages, the discretion, on a finding that the Civil Rights Act has been violated, to order reinstatement in lieu of an award of front pay.
The implication in the majority opinion that federal cases support the proposition that a Michi-
II
Nor is there anything in the federal title VII cases that grants federal courts the power to deny a plaintiff who has been found to be the victim of an unlawful employment practice a remedy that would make him whole.
The majority correctly observes that federal court decisions speak of broad discretion, under the federal legislation, concerning the fashioning of the remedy, but the majority does not state the full picture. While the federal courts have discretion in determining how to make a plaintiff whole, at least where a plaintiff has not unreasonably rejected an unconditional offer of reinstatement, they do not appear to have discretion to determine
In Albemarle Paper Co v Moody,3 the United States Supreme Court held that backpay generally should be awarded to a successful claimant because this is necessary to make him whole.4 United States district courts and circuit courts of appeal have applied the Albemarle presumption—that a court should award the relief necessary to make the plaintiff whole—in cases in which plaintiffs have sought relief other than backpay. These cases indicate that a federal court must choose a remedy that makes the plaintiff whole; those remedies that often most effectively make a plaintiff whole, such as reinstatement, seem to be favored.
A number of federal courts have applied the Albemarle presumption to reinstatement. In Henry v Lennox Industries, Inc, 768 F2d 746, 752-753 (CA 6, 1985), the United States Court of Appeals for the Sixth Circuit said:
While the statute,
42 USC 2000e-5(g) , clearly provides for reinstatement, the scope of the remedy rests within the discretion of the district court. . . . A finding of intentional discrimination presumptively entitles the plaintiff to reinstatement. . . . “[R]einstatement, like backpay, should be denied ‘only for reasons which, if applied generally, would not frustrate the central statutory purpose of eradicating discrimination . . . .‘” Grubb [v Foote Memorial Hosp, 533 F Supp 671, 676 (ED Mich, 1981)] (quoting Albemarle Paper Co v Moody, 422 US 405, 421; 95 S Ct 2362, 2373; 45 L Ed 2d 280 [1975]).
Similarly, in Taylor v Teletype Corp, 648 F2d 1129, 1138 (CA 8, 1981), cert den 454 US 969 (1981), cited by the majority, the United States Court of Appeals for the Eighth Circuit said:
In a Title VII action, however, a court may deny reinstatement “only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.” [Albemarle Paper Co v Moody, 422 US 405, 421; 95 S Ct 2362, 2373; 45 L Ed 2d 280 (1975).]
Professor Larson said:
Once it has been established that this kind of adverse employment action [discharge, demotion, or transfer] has occurred because of unlawful discrimination, the courts will normally award reinstatement unless special circumstances exist that make it inappropriate. This presumption is derived indirectly from Albemarle Paper Co v Moody, in which the Supreme Court established a similar presumption in favor of the award of back pay. There seems no reason to treat reinstatement differently, especially since Albemarle‘s holding is grounded in the “make whole” purposes of Title VII. [2 Larson, Employment Discrimination, § 55.21, p 11-63.]
From Henry, Taylor, and Larson, it seems fair to conclude that a federal court does not have especially broad discretion to determine whether to order reinstatement. If reinstatement is necessary to make a plaintiff whole, it should generally be awarded. To be sure, there might be special circumstances in which reinstatement might be in-
Even when a federal court determines that reinstatement would not be appropriate, it appears that the court‘s discretion in fashioning a remedy may not be as broad as the majority implies. When “the court has determined that reinstatement is deserved but сannot be ordered . . . [it will] most commonly award ‘front pay‘—that is, compensation for loss of future earnings—in lieu of reinstatement”6 if such an award is necessary to fully compensate a victim of discrimination and can reasonably be calculated. In the words of the United States Court of Appeals for the Tenth Circuit:
Although the cases discuss the award of front and back pay as being in the trial court‘s discretion, the United States Supreme Court has made it clear that this discretion must be exercised so to make possible the fashioning of the most complete relief possible. See Albemarle Paper Co v Moody, 422 US 405, 421; 95 S Ct 2362, 2373; 45 L Ed 2d 280 (1975). [EEOC v Safeway Stores, Inc, 634 F2d 1273, 1282 (CA 10, 1980) (remanding and ordering an award of front pay).]
In short, where reinstatement is not possible and
Indeed, the Albemarle presumption—that a plaintiff is entitled to the relief that is necessary to make him whole—may control a court‘s decision whether to award front pay in lieu of reinstatement. A treatise states:
The widespread use of the terms “backpay” and “front pay” suggests that these two awards are distinct, perhaps even that § 706(g) [42 USC 2000e-5(g)] authorizes the former by the term “backpay” and authorizes the latter by the phrase “other equitable relief.” The result is that some appellate courts view the Albemarle presumption in favor of a backpay award as inapplicable to a front pay award. It seems more likely, however, that both backpay and front pay are authorized by the “backpay” provision in § 706(g). After all, if the purposes of “backpay” are to compensate an employee for his wage losses and to provide incentive for employer compliance, Congress probably intended the award to include wage losses sustained after the date of judgment. If front pay is an aspect of backpay, the Albemarle presumption should have equal applicability to the front pay award. But, even if the two awards have different statutory origins, their close similarity and common purposes require the same approach to their availability. [2 Sullivan, Zimmer & Richards, Em-
ployment Discrimination (2d ed), § 14.4.3, pp 24-25.][8]
A federal court thus must choose a remedy that makes whole a victim of discrimination.
III
The majority provides for a trifurcated procedure on remand, allocating to the court the determination whether the offer of reinstatement in the instant case was unconditional, allocating to the trier of fact the “resolution of the reasonableness of rejection issue,” and allocating to the court “a reassessment of the appropriate remedy.”9
The majority needlessly requires separate determinations of the conditionality of the reinstatement offer and of the reasonableness of the rejection. In my opinion, there is only a single determination to be made—did the plaintiff fail to mitigate his damages—respecting whether a prevailing plaintiff may recover damages for a period following rejection of an offer of reinstatement. This issue should be decided by the trier of fact just as it is in other wrongful discharge cases in this state,10 and just as it is in the federal system
Assuming arguendo that whether an offer of reinstatement was conditional and whether the plaintiff acted reasonably in rejecting such an offer are proper are separate inquiries, each of these inquiries presents a question of fact for the trier of fact,13 and neither may be resolved by the court as a matter of law unless reasonable minds could not
IV
The majority states that it disagrees with the “indication” in this opinion that the remedy provision of the Civil Rights Act “does not afford the same wide discretion to fashion a remedy as the
A
The majority states three reasons. The “first” reason is that § 801 of the Civil Rights Act16 “provides for injunctive relief as well as for damages,” and § 80317 “provides for ‘direct or immediate legal or equitable remedies,‘” (emphasis added in the majority opinion), and “these terms are not defined in statutes nor could we find state precedent providing definitions.”
The majority continues that the Civil Rights Act “is fairly succinct,” and “we are convinced that the Legislature intended that our courts look to the more comprehensive federal statutes and precedent for guidance.” The majority adds that it is also convinced that the “spirit” behind the Civil Rights Aсt “emulates that behind the federal” act, and that it “could find no direct support indicating a difference between the remedy provisions of the Michigan statutes and the federal ones.”
Section 803 does not support the majority‘s construction. Section 803, quoted in its entirety, provides: “This act shall not be construed to diminish the right of a person to direct or immediate legal or equitable remedies in the courts of the state.” (Emphasis added.) This provision simply repeats the language of the constitution providing for the establishment of a Civil Rights Commission, with powers “provided by law to carry out its purposes.” The next sentence reads: “Nothing contained in this section shall be construed to diminish the right of any party to direct and immediate
Manifestly, § 803 simply repeats the concepts set forth in the constitution, and provides, in effect, only that neither the creation of a Civil Rights Commission, nor the provisions of the Civil Rights Act, shall diminish the right of a person to direct or immediate legal or equitable remedies in the courts of this state. That says nothing about what those legal or equitable remedies might be.
The majority is quite right that § 801 provides for “injunctive relief as well as for damages.” The majority reads this as empowering the courts of this state to substitute an equitable remedy for a damage remedy. Section 801 does not provide that the courts of this state may provide an equitable remedy, such as injunctive relief, or a damage remedy, as the court thinks best in the exercise of its discretion. It rather provides that “[a] person alleging a violation of this act may bring a civil action for appropriate injunctive relief or damages, or both.” (Emphasis added.)
The discretion whether to seek an equitable remedy, such as injunctive relief “as well as” damages, is, confided by the constitution and the Legislature to the person alleging a violation of the Civil Rights Act. That is consistent with the constitutional provision stating that nothing contained in the constitutional provision establishing a Civil Rights Commission or in legislation enacted to carry out the purposes of that constitutional provision shall be construed to diminish the right of a person19 to direct and immediate legal or equitable remedies in the courts of this state.
To state the obvious, damages are a legal rem-
The majority has an extravagant view of judicial power in concluding that it may arrogate to the trial courts of this state the power—so clearly confided by the constitution and the Legislature to the victim of a civil rights violation—whether to seek an equitable remedy as an alternative to a legal remedy.
B
The majority states “second” that this opinion is deficient in removing guidelines found in federal precedent without offering any meaningful standards to fill the void. As set forth earlier in this opinion, there is no need to address this issue at all because Rasheed seeks an equitable remedy rather than a damage remedy, and therefore there is no need to address the question whether, had he sought a damage remedy, the courts of this state could impose an equitable remedy as an alternative, and what the standards might be in such a case.
I do not rely on the federal precedent. I discuss it because the majority relies on the federal precedents that are not in point because the federal cases construe an entirely different remedial provision20 that, as construed by the United States Supreme Court, confides to trial courts the decision whether to provide an equitable or other remedy.
The majority states that “a fair degree of discre-
C
The majority‘s “third” point is that the trifurcated procedure that it imposes is a “clear procedure for resolving matters of this nature,” and that the alternative is to countenance “a convoluted jury question that includes issues of law, as well as issues of fact, in the melange,” and that it seeks to eliminate “uncertainty caused by the lack of clear procedural guidelines.”
There is nothing convoluted about asking a jury to decide whether the terms of an offer of reinstatement were, in the circumstances of the case, conditional, and, if not, whether the victim of discrimination was reasonable in rejeсting an offer found by the jury to have been unconditional. The question is far simpler than questions frequently posed to juries in patent and antitrust cases and in ordinary litigation. The jury can be asked to pro-
As set forth earlier in this opinion,22 United States Courts of Appeals, construing the federal statute, have not found it necessary to create a bifurcated or trifurcated procedure. The majority simply prefers to confide to trial courts, and to remove from jury consideration, questions that the majority is more comfortable having a judge decide. This is judicial legislation, an arrogation of power to the courts in an area in which the majority does not trust the jury.
There is ample power under the traditional approach that permits a trial court to remove from jury consideration any issue of fact that, in the judgment of the trial court, all reasonable persons must reach but one result. The majority will have no difficulty reaching the results it believes are manifestly correct under that approach. It does not need a bifurcated or trifurcated procedure to work its will in individual cases.
V
I would direct that on remand the circuit court should enter a partial judgment, in accordance with this Court‘s affirmance of the finding of discrimination, awarding the plaintiff the $50,000 awarded by the jury plus interest. I would further direct that the defendant be required to reinstate the plaintiff—who sought an equitable remedy23 and not a legal remedy24—as soon as possible.
I would also order the circuit court to set for trial the issue whether the plaintiff failed to miti-
Notes
In contrast, front pay is defined as “a monetary award that compensates victims of discrimination for lost employment extending beyond the date of the remedial order.” Id., § 55.39, p 11-96.121. As case law makes clear after Ford Motor Co v EEOC, 458 US 219 (1982), the line of demarcation has been drawn between backpay and the continued right to backpay from the date of a rejection of an unconditional reinstatement offer. Front pay refers to that part of an award that accrues after a decision is rendered.
To be sure, as with reinstatement, there will be instances in which front pay will not be an appropriate remedy. Professor Larson states that front pay has been denied where “the plaintiff misrepresented facts on his employment application,” where “the business [that previously employed the plaintiff] ceased operations,” where “the dеfendant had already begun to fix the offending employment conditions,” and where “the plaintiff had found comparable substitute employment.” 2 Larson, supra, § 55.39, p 11-96.125.These examples, though, do not change the general presumption, adverted to in the Sullivan, Zimmer, and Richards Employment Discrimination treatise that front pay should generally be awarded when it is necessary to make whole a victim of discrimination.
If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, . . . hiring of employees, with or without back pay, . . . or any other equitable relief as the court deems appropriate. . . . Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable. [Emphasis added.]
The remedies listed under article 8 of the Michigan Civil Rights Act,
We think that the cases decided both before and after Ford Motor Co [v EEOC, 458 US 219; 102 S Ct 3057; 73 L Ed 2d 721 (1982)] establish that the central question with respect to damage mitigation is for the trier of fact: what amount could the employee have earned through the exercise of reasonable diligence? . . . If the employee has refused the offer of a specific job, whether from defendant or another employer, the question is basically the same: was the employee‘s refusal of the job reasonable? [EEOC v Exxon Shipping Co, 745 F2d 967, 978 (CA 5, 1984).]
The Second Circuit recently reaffirmed this passage from Pierce in Clarke v Frank, 960 F2d 1146, 1151 (CA 2, 1992), where it wrote, “[w]hether the employer made an unconditional offer of reinstatement, and whether the employee rejected that offer, are questions of fact to be determined by the district court.” (Emphasis added.)“Generally, it is the duty оf the trier of fact to weigh the evidence to determine whether a reasonable person would refuse the offer of reinstatement.” Fiedler v Indianhead Truck Line, Inc, 670 F2d 806, 808 (CA 8, 1982). Whether an offer was unconditional for purposes of mitigation is similarly a question for the trier of fact. Cf. Bruno v WB Saunders Co, 882 F2d 760, 770 (CA 3, 1989) . . . . [Emphasis added.]
Holmes v Marriott Corp, 831 F Supp 691, 711 (SD Iowa, 1993), similarly indicates that whether an offer of reinstatement was conditional is normally a question for the trier of fact. In that case, the court granted the defendant‘s motion for summary judgment (limiting its liability for backpay) on the basis that the plaintiff had rejected an unconditional offer of reinstatement. The court only granted the motion because “there is simply nothing about the offer of reinstatement that a trier of fact could find would be anything but unconditional.” The clear implication is that conditionality is normally a question for the trier of fact.
The facts of this case also illustrate that it will rarely be possible to determine whether an offer is conditional solely on the basis of the wording of the offer.
The failure to accept an offer of reinstatement does not automatically terminate an employee‘s right to relief.
“In determining whether the right to relief extends beyond the date of an offer of reinstatement, the trial court must consider the circumstances under which the offer was made or rejected, including the terms of the offer and the reasons for refusal.” [Id. at 1139. Citation omitted.]
But see Giandonato v Sybron Corp, 804 F2d 120 (CA 10, 1986) (a refusal to accept an offer of reinstatemеnt in an age discrimination case for illness of claimant‘s wife, generalized aversion to working under a district manager, and generalized assertions of the “uncertainty” of the offer was unreasonable); Morvay v Maghielse Tool & Die Co, 708 F2d 229 (CA 6, 1983) (an offer of reinstatement conditioned only upon the claimant‘s submission to a psychiatric examination in light of questionable past behavior terminated continued backpay liability); Boomsma v Greyhound Food Management, Inc, 639 F Supp 1448 (WD Mich, 1986) (the rejection of reinstatement offer because it did not include backpay and did not offer compensation for certain medical expenses, and because claimant was happy with his new job, precluded an award of continued backpay).
One point worthy of note is that the Sixth Circuit has previously recognized that an offer of reinstatement may be insufficient to bar awards of continued backpay if it is conditioned upon, among other things, the failure to restore seniority rights. Morvay, supra at 232.
Nonetheless, this Court has already relied on federal authority as being persuasive in this area. See Dep‘t of Civil Rights ex rel Cornell v Edward W Sparrow Hosp Ass‘n, 423 Mich 548, 560-563; 377 NW2d 755 (1985) (opinion of WILLIAMS, C.J.).
Note 2 and accompanying text.Whether the plaintiff was reasonable in not seeking or accepting particular employment is a question for you to decide. However, the plaintiff is obligated to accept an offer of employment which is of “a like nature.” In determining whether employment is of “a like nature,” you may consider, for example, the type of work, the hours worked, the compensation, the job security, working conditions, and other conditions of employment.
(If you find that the defendant unconditionally offered to [hire/promote/reinstate] the plaintiff to the position [previously held/applied for] or a substantially equivalent position, you shall not award damages for loss of compensation after the date the plaintiff rejected the offer. Substantially equivalent position means one with virtually identical promotion opportunities, compensation, job responsibilities, working conditions, and status. An offer is not unconditional if the job offered involves discriminatory conditions.)
The defendant has the burden of proving that the plaintiff failed to mitigate [his/her] damages for loss of compensation.
When the parties to a bargain sufficiently defined to be a contract have not agreed with respect to a term which is essential to a determination of their rights and duties, a term which is reasonable in the circumstances is supplied by the court.
See also
One of the two theories of just-cause employment is “grounded solely on contract principles ‘relative to the employment setting.‘” See, generally, Rood v General Dynamics Corp, 444 Mich 107, 118; 507 NW2d 591 (1993), and authorities cited therein.
Even the duty to mitigate damages derives from contract law. See, e.g., Calamari & Perillo, Contracts (3d ed), § 14-15, pp 610-613.
This ruling effectively wipes out the plaintiff‘s right to backpay even for the period preceding the offer of reinstatement. If rejection of the offer was unreasonable, this unreasonableness did not arise from the date that the plaintiff was terminated. It is our belief that the Eleventh Circuit mistakenly assumed that the district court relied on some fact-finding power rather than on its equitable power to fashion an appropriate remedy. In turn, the appellate court rested its reversal of the reinstatement on a nonexistent factual finding, which thereby enabled it to ignore the fact that the reasonableness question was one for the jury and not for the courts absent some appropriate form of motion practice. Although we agree that avoidance of the duty to mitigate should cut off benefits, removal of the question from the factfinder disregards the weight of federal authority, improperly shifts the burden of proving mitigation onto claimants, and runs afoul of the primary purposes of title VII, to wit: eradication of discriminatory employment practices and making the victims of such practices whole for injuries suffered.
If for no other reason, we decline to follow Stanfield on the basis that the Michigan Civil Rights Act provides a basis of recovery independent of the provisions of title VII. See n 20.
It matters little whether the issue is framed as a reasonable/unreasonable condition or as a reasonable/unreasonable rejection as long as the courts’ power to construe contracts is not extended to remove the rejection question from the finder of fact.
For examples of rejections found to be unrelated and therefore unreasonable in the federal courts, see n 17.
A party opposing a motion for summary disposition based on the lack of a genuine issue of material fact has the burden of coming forth with some evidentiary proof that a genuine issue of fact does exist in order to avoid the granting of the summary judgment. Mere conjecture does not meet the burden of presenting evidence. . . . The party opposing a motion for summary disposition based on an alleged lack of genuine issue as to any material fact must at least assert that such a dispute exists and support the allegation with some independent evidence . . . . [Id., § 43.05.50, p 33.]
There was a third claimant in the Ford Motor Co case whose employment was not the substantial equivalent of the job sought with defendant. However, careful review of the opinion indicates that the third claimant‘s interests were not addressed in the majority‘s analysis, being parts II-V of the majority opinion. Presumably, her claim for front pay damages in excess of her earnings at the subsequent employment remained.
In this case we recognize the same shifting of burden, only we reverse it to respect the fact that the initial burden of proof regarding the damages mitigation issue lies with the employer rather than with the employee or applicant. We also point out that the second step is more accurately characterized as the shifting of the burden of production (i.e., producing a valid business reason) than as the shifting of the burden of proof. See n 36. Furthermore, this shifting burden analysis does not preclude the grant of summary disposition on the basis of the absence of any genuine issue of material fact. See Clark, supra at 825.
“Front pay” is a monetary award that compensates victims of discrimination for lost employment extending beyond the date of the remedial order. Front pay is considered the equitable equivalent of reinstatement and it is awarded in two situations: first, when reinstatement сannot occur immediately because of the temporary lack of availability of a position or the undesirability of “bumping” another employee; and second, when the remedy of reinstatement is simply not appropriate, usually because of the hostility that has developed between the parties. [Larson, supra, § 55.39, p 11-96.121.]
The Michigan Civil Rights Act is fairly succinct. Thus, we are convinced that the Legislature intended that our courts look to the more comprehensive federal statutes and precedent for guidance. In fact, state courts have already ruled that federal precedent, although not binding, is persuasive authority. Robson v General Motors Corp, 137 Mich App 650, 653; 357 NW2d 919 (1984), rev‘d on other grounds in Sumner, supra; Clark, n 20 supra. The federal remedy statute,
Second, we recognize from cases such as Albemarle that a court‘s discretion is “‘hardly unfettered by meaningful standards or shielded from thorough appellate review.‘” See p 123. The viewpoint of the separate opinion seeks to remove guidelines found in federal precedent without offering any meaningful standards to fill the void. We also note the fact that the separate opinion relies exclusively on federal precedent to make this point. The approach we take today is intended to ensure that victims of discrimination are made whole, and a fair degree of discretion is necessary to implement this goal.
Third, we advocate a cleаr procedure for resolving matters of this nature rather than countenance a convoluted jury question that includes issues of law, as well as issues of fact, in the melange. It is our design to remove the type of uncertainty caused by the lack of clear procedural guidelines that is evident from the specific facts of this case.