Richard S. Boynton v. Trw, Inc.

clearly established constitutional right in this circuit. BOYNTON, Richard S. Plaintiff-Appellee, mind, however,

It must be borne ample yet room remains for the establish v. ment principles of new of constitutional TRW, INC., Defendant-Appellant. notwithstanding qualified law immuni ty doctrine. rights may yet Constitutional No. 83-1773. pursued many avenues, other such as United States Appeals, Court of declaratory injunctive relief, motions to Sixth Circuit. suppress, against municipalities actions not qualified clothed immunity, and the Reargued Nov. proper A like. concern for the need of Decided Oct. public forthrightly officers to act and with timidity prompted out Supreme Court Dept. Monell v. Social Services of York, City New 436 U.S. 98 S.Ct. (1978), open 56 L.Ed.2d 611 up

liability municipalities, overruling Mon

roe Pape, 365 U.S. 81 S.Ct. (1967). Thus,

L.Ed.2d 492 the Court cre very

ated a real trade-off limi between the

tation govern individual liabilities of spelled qualified

ment officials out in the decisions, see,

immunity Mitchell, e.g., su Harlow,

pra; supra, and the creation of municipal liability

new in Monell currently issue before our court appropriateness

is the of the district court’s appellants’ qualified

denial of the claims of

immunity. It inappropriate would be question

us to decide at this time the protection, any,

what if the Fourth Amend- prison employees

ment affords to the

question. onlyWe observe that the unrea-

sonableness of the searches as a matter of adjudication

constitutional certainly clearly

not established at juncture, this circuit, and we see no need to render advisory opinion question on the here. simply

We hold that the district court erred finding that the law in this area is clear-

ly pure question established. As this is a law, question we need not remand this Thus,

the district court.

the district court is REVERSED and the

case is REMANDED for trial on the re-

maining issues. Metz,

Virginia argued, F. David B. Cal- zone, Gust, Klein, Zile, Butzel, Long, Van Detroit, Mich., defendant-appellant. Weinstein, Kroll, Gordon, Southfield, Mich., Burns, argued, plain- F. Richard tiff-appellee. Rivers, Huizenga, M. Donnelly,

Beth Detroit, Mich., Hagan, Wahl & for amicus curiae. ENGEL, *, Judge

Before Chief LIVELY, KEITH, MERRITT, MARTIN, KENNEDY, JONES, WELLFORD, KRUPANSKY, MILBURN, GUY, NELSON, RYAN, NORRIS, Judges. BOGGS and Circuit RYAN, Judge. Circuit discharge diversity action wrongful This significant question concerning the raises a scope of Blue Blue Toussaint v. Cross and Michigan, 408 Mich. Shield of (1980), a case Michi N.W.2d 880 which tradi gan’s Supreme Court narrowed the employment-at-will doc tional common law ex by holding “that an trine agreement to terminate pressed cause, company policy and statements effect, give can rise procedure to in contract.” Tous rights enforceable saint, 880. 408 Mich. at salesman, a former TRW Boynton, Richard by TRW 1980 when was terminated result of position sales was eliminated as a in the automo adverse economic conditions specific issue raised industry. bile dis is whether the TRW this under a charge retained contract,” con- “just cause cededly solely an economical motivated force, subject ly mandated reduction judicial review under analysis progeny. We Michigan’s never courts have conclude that just cause doctrine of held the Toussaint arising eco- applicable layoffs out of an Judge April Engel effective duties of Chief Honorable Albert J. assumed the *The nomically mandated reduction force. man from 1945 until During Consequently, we hold that the district period, Boynton employed by defend- court erred in denying TRW’s motion for a TRW, ant-appellant separate Inc. on two judgment notwithstanding the verdict. occasions, extending the last from 1961 through 1969, 1969. In Boynton left TRW We note at the Boynton origi- outset that to Stop work for Elastic Septem- Nut. In nally filed in this action district court in 1972, ber of Stop Elastic Nut reduced its June of A jury 1981. trial was held and a Boynton sales force and judgment ultimately laid off. entered in favor of Boynton began Boynton September Dayton, in work for a ap- of 1983. TRW Ohio pealed company panel and a divided of this court in Shortly October of 1972. thereafter, judge correctly held “that the trial 1972, sub- in November of Richard mitted to the issue ... wheth- Bengston, manager, [the a TRW sales of] contacted er the economic in conditions reflected the Boynton to see if he was interested ‘just evidence constituted cause’ for termi- returning Bengston arranged to TRW. to TRW, Inc., Boynton nation.” No. 83- Boynton interview in Dayton position 1773, 17, slip op. (January 1986). at 14 representative as a field Chicago TRW’s However, panel unanimously concluded majority opinion office. As the pan- that excluding the district court erred in originally el which notes, heard this case concerning Boynton’s evidence failure to alleged representations by Beng- made mitigate damages, his and the case was Boynton ston to at the time of the 1972 remanded for new trial. interview, along with certain alleged termi- majority

A subsequently of this court practices nation customs of TRW voted to panel’s vacate the initial decision Boynton which claims to have during relied grant and to petition for a rehear- ensuing TRW, with are the ing en banc because the case involved an critical factual elements of this case. See exceptional issue of importance and first Boynton, slip op. at 2-3. impression Michigan under law.1 See Fed. Boynton accepted testified that he re-em- R.App.P. arguments 35. The court heard ployment upon Beng- with TRW in reliance 1986, in the case November of but re- ston’s statement that “he felt if I that served pending its decision Michigan [Boynton] my did job, usual that I would Supreme Court’s resolution on certification job have a until Boynton retirement.” also of potentially dispositive a issue in a relat- claims to upon Bengston’s have relied court, ed case still pending before statement philosophy that “the of the com-

Bankey Co., v. Storer Broadcasting No. pany changed” Boyn- had not since [TRW] 84-1296. Michigan Since the yet Court has ton last left employ Boyn- accepted resolve the issue it for certifica- ton testified that it was his “under- tion Bankey, this court feels it can no standing” that “the as far Ias am longer delay resolution of the issues raised concerned was that whoever had in this Accordingly, comply case. we must the last to be laid off.” duty with our light to decide the case in policies enunciated in the decisions of accepting position TRW, After Michigan courts. Tomp- Erie Railroad v. Dayton moved from Chicago kins, 64, 817, 304 U.S. 58 S.Ct. 82 L.Ed. where he served from 1973 until 1977. In (1938). 1977, Boynton accepted a transfer to a position sales in TRW’s Detroit office. In

I. Detroit, Boynton’s soliciting duties included Plaintiff-appellee Chrysler, Motors, Richard en- sales from American joyed long and varied career as a sales- International previous Harvester. As the (1985), Hospital, In Grubb v. W.A. panel Foote Memorial of this court affirmed the deci- (6th Cir.1984), aff'g, F.2d F.Supp. Michigan sion of a district court to refrain from (E.D.Mich.1981), reh'g hearing vacated on on other pen- a claim similar to as a (6th grounds, Cir.), denied, 759 F.2d 546 Age cert. Employ- dent claim in an Discrimination in 474 U.S. 106 S.Ct. 88 L.Ed.2d 209 ment Act case. concluded, “Boyn- alleged nomic conditions TRW constitut- majority opinion panel’s satisfactory man- very ed “just cause” was an issue fact for performed ton litigation did ner, no time in this and at jury. of his challenge quality perform-

TRW Bengston’s TRW conceded that Novem- op. at 3. Boynton, slip ance.” an implied ber 1972 statements created em- nec- it was concluded contract, argued ployment but sales eliminate one four essary to Toussaint doctrine of cause was not office to ad- positions in its Detroit due applicable layoffs discharges result- in the automobile economic conditions verse ing solely from economic condi- adverse Boynton was industry. On June tions. TRW also denied claim sales- by TRW. three laid off Two lay employ- that it TRW’s to off was by had less men retained solely according seniority. ees to The dis- Boynton Boynton. TRW claimed that than court denied trict TRW’s motions for a simply for termination be- was selected directed verdict. The court submitted and Boynton’s Chrysler American conditions, of “whether economic un- issue were, relatively speaking, Motors accounts case, der the circumstances this was importance to TRW. Richard least of the good discharging plain- cause for [sic] Boynton’s supervisor, testified Maloney, jury. tiff” to the The returned a roughly mil- an in 1979 TRW had $11 that $143,- Boynton verdict for in the amount of Motors and a $10 account with General lion 000. This followed. $700,- Ford, only but million account with $400,000 and Chrysler account with Boynton Motors. account with II. .American gross had personally that his sales testified inquiry applica initial concerns Our $2,300,000in 1978 to “about dropped from bility of the doctrine of Toussaint $1,800,000” in 1979 and “another 25%” layoffs cause terminations to motivated Boynton’s posi- first half of 1980. in the resulting solely by a reduction force layoff. his not filled after tion was In from economic circumstances. adverse 1981, Boynton filed the In June Toussaint, Michigan Supreme Court claiming Bengston’s that present action limited the traditional common law view pre-1979 statements and 1972 oral employment employment and oral contracts policies implied an em- created unwritten period term. for an indefinite or contracts Boynton contract under which ployment held such contracts The traditional view “just only discharged for cause.” be could See, e.g., at will. Wiskotoni v. terminable poli- further that TRW’s Boynton claimed Bank-West, F.2d Michigan National regard- required it to its decisions cies base (6th Cir.1983). held solely seniority. ing layoffs As employer’s expressed agreement “that.an concluded, Boyn- previous panel’s majority cause, only or statements to terminate for sincerity challenge “no as to the raised ton procedure to that company policy and making decision motive effect, rights give can rise to enforceable lay Boynton] and decision [the Toussaint, 408 Mich. at contract.” ad- no assertions that reasons [made] Michigan court rea 880. The selecting him termi- by TRW in for vanced soned: pretextual any were discrimina- nation need not employer an establish While intent, any way or in tory motivated policies practices, personnel where Boynton, slip op. at malice or bad faith.”2 poli- to establish such employer chooses Rather, Boynton argued that “there practices and makes them and off,” cies lay anyone let necessity no was employees, to its known seniority, salesman and alone a relationship presumably is enhanced. eco- the issue whether adverse that fact, age before trial. abandoned discrimina- and law claims under both state federal tion employer The orderly, cooper- employer alleges secures an Where the that the force, ative loyal and work and the em- employee discharged for one rea- ployee peace of mind associated with son—excessive tardiness —and the em- job security and the conviction that he ployer presents evidence that he was re- fairly. will be treated pre-employ- No ally discharged for another reason —be- negotiations ment place need take and making money cause he too much parties’ minds need not meet on the question commissions—the also is one of subject; nor does it matter that the em- always fact jury. for the ployee nothing particulars knows of the permitted to determine the employer’s policies practices reason discharging employ- true employer may change or that the them ee. unilaterally. enough It is em- that the Toussaint, 613, 619, 621, 622, 408 Mich. at chooses, ployer presumably in its own (footnotes omitted). 292 N.W.2d 880 interest, to create an environment bar, In the dispute case at there is no that, which the believes what- was led to believe that he personnel policies practices, ever the discharged “just could be they cause.” are established and official at time, fair, Similarly, given purport dispute there is no and are the “true applied consistently uniformly Boynton to reason” was laid off TRW was employee. employer each The has then because of adverse economic circumstanc created a situation “instinct with an obli- facts, es. Under these we must determine gation.” Boynton whether has stated a Toussaint announced the he was under no from that cause If there is in effect a ^[*] only, ^[*] policy in the first policy, employer ^[*] at whim obligation policy presumably with a place. Having may simply to dismiss for to institute ^[*] not because depart * * tute reason for N.W.2d cause,” Toussaint, under “decide claim. If its Michigan 880, and, whether discharge law, for that of the ... accordingly, can substi has stated a 408 Mich. at [a a trier of fact can amounts to purely claim, economic] employer. good then 292 obtaining improved view to benefit majority The panel of the which employee attitudes and behavior and im- originally appeal heard TRW’s concluded proved force, quality of the work Michigan recognized Boynton’s law employer may promise not treat its as claim: illusory. jury as trier of facts decides whether the ployee work is unsatisfactory minate employee cause has We all ^[*] agreed only, subject agree was, discharged to its declaration that the em- discharge work. A where an that ^[*] judicial fact, ^[*] promise discharged for unsatisfactory employee review. The ^[*] employer to ter- would * * for where the tions asserted its son—such as the adverse economic condi- cause for termination under an implied contract of in which ently Although issue, approach had in mind misconduct of the we see no employer permanent the Toussaint court here—as would be primarily basis adduced another rea- employment. constituting just for employee holding those cases different appar- was illusory if employer permit- be were Boynton, slip op. at 12. sup- We find no judge ted to the sole and final arbiter port Michigan panel’s law for the broad propriety discharge. of the There reading of Accordingly, Toussaint. we employer’s must be some review the hold that to the extent that seeks if decision the cause contract is to be judicial “justness” review of the lay- of his distinguished from the satisfaction con- off, layoff concededly solely by motivated tract. circumstances, adverse economic he has

failed to state a claim for relief. 1183 the-danger there is that it will substitute federal district Admittedly, several employer’s. If appellate for the Michigan intermediate courts apply read Toussaint employee not fired the jurors would have panels have did, discharge admittedly he context. doing what the limits of beyond Co., Pager See, Ariganello v. Scott e.g., damages employer may be held liable (“[T]he (E.D.Mich.) 486 F.Supp. discharged although employer can of Toussaint is that an tenor good decision faith and expectations as a job-related create various was not unreasonable. made assertions consequence of the Toussaint, 408 Mich. at Indeed, the employees.”). to his employer added). A (emphasis number noted that: itself Toussaint Court to a conclusion. courts have come similar employment ab- right to continued See, Hospital, e.g., Bhogaonker v. Metro thus, may, termination cause for sent (1987) Mich.App. 417 N.W.2d 501 employer policies and of stated because denied, curiam), Mich. (per enforceable procedures, be established Builders, (1988); Friske Jasinski rights are so derived as contract ap (1986), Mich.App. 402 N.W.2d 42 bonuses, other pensions and forms denied, Parker (1987); peal 428 Mich. 880 by Mi- previously held compensation as Co., Crystal F.Supp. v. Diamond Salt chigan courts. (W.D.Mich.1988). Toussaint, 618-19, 292 N.W. 408 Mich. at Friske, Friske, plaintiff, David added). courts (emphasis Several 2d 880 for twen- had worked for Jasinski Builders interpreted the doctrine of have when ty years five but was terminated on apply to claims based just cause to of Directors decided to Jasinski’s Board in severance expectations employer-created contracting op- company’s discontinue supra); (Ariganello, tenure review pay employees and to terminate all erations Baker, (E.D. (Marwil F.Supp. 560 v. 499 Friske’s operations. those connected with re Mich.1980)); employees for policies provided for termi- employment agreement (Sepanske service leave turning from social as deter- only “for sufficient cause nation 819, Corp., 147 Mich.App. 384 v. Bendix of Di- Board mined rectors_” [Jasinski’s] (1985)); on compensation based N.W.2d 54 Friske, 470, Mich.App. at 156 (Bullock v. Auto Club sales commissions granted trial court 402 42. The N.W.2d 711, Mich.App. 381 N.W. Michigan, 146 of summary judgment motion for Jasinski’s discharge procedures (1985)); and 2d 793 affirmed, concluding: and the circuit Inc., Terminal, Coop. (Damrow Thumb v. law, the termination a matter of ... [A]s (1983)). 354, 338 Mich.App. 337 N.W.2d followed employment which plaintiff’s recognized employ an these cases Each of closing was economically motivated an claim where ee’s Toussaint contract in the provided “for cause” as sufficient expectation con employer had created agreement. either the em tingent upon factors within 471, The court of Id. at 402 N.W.2d 42. control. We employer’s or the ployee’s appeals, noting that Friske “does not claim however, agree are, unable part fraud, subterfuge on the faith or bad similarly that a majority conclusion panel’s in its decision to cease of the Board reading of Toussaint supports an broad 472, 402 operationsf,]” Id. contracting wrongful discharge claim employee’s 42, court’s de- the circuit affirmed position elimi employee’s was where cision, holding: economic solely of adverse nated because employer’s control. In indicates that termination beyond his Case law factors . recog compe- implicitly of an otherwise the deed, employment Court economically wrongful discharge must to an employee claims due nized that tent con closing some is not necessarily predicated motivated business employer wrongful discharge “fault.” claim. cept grounds for a Corp., See, Chrysler e.g., Bouwman permitted to decide whether If the is 681-682, 670, 319 N.W.2d Mich.App. discharge, good cause there was (1982), (1983); however, den, necessity lv. 417 Mich. 989 contest the economic Chemical, 636 F.2d Reynolds Sahadi v. for his termination. Bhogaonker, 164 (CA 1980); F Royster S Mich.App. at Citing N.W.2d 501. (CA Hall, Co. v. 68 F.2d Guano Friske, Metropolitan the court held that 4, 1934). these We find that cases are entitled to a was as a matter of analogous sup to the instant case and law. Id. that, law, port holding as a matter of Boynton’s claim that he dis plaintiff’s discharge for economic rea charged indistinguishable without cause is sons, as determined and within the from the claims held barred in Friske complete of di discretion of the board Bhogaonker. dispute There is no corporation, rectors of defendant consti lay tutes termination for TRW’s decision to sufficient cause. impose

To hold an un born out of necessity, otherwise would economic a factor upon employ economic Boynton’s workable burden outside of or TRW’s control. stay point ers to business to Michigan previously Based on the cases bankruptcy satisfy employ order to cited, simply are we unable to conclude agreements ment contracts and related claim falls within the ambit good terminable or sufficient wrongful discharge of a Toussaint claim. cause. virtually support We find no agreement empowered herein “just claim that a con plaintiffs board of directors terminate guarantees permanent employment tract” employment for sufficient cause. The regardless changes in economic condi determination as to what constituted suf- tions, specific language absent to that ef ficient cause was left to the board’s dis- Further, fect. always while “[t]he cretion. agreement We find the to be permitted to determine the true unambiguous regard and, in this there- discharging reason for employee[,]” fore, according must construe it to its Toussaint, 408 Mich. at 292 N.W.2d plain meaning. Bank the Common- support find proposition we no for the Institute, wealth v. Criminal Justice management that the soundness of a deci 239, 244, Mich.App. 301 N.W.2d 486 sion to effect solely by a reduction force (1980). questions No of fact exist with reason of adverse economic circumstances regard to the exercise of the board’s subject Friske, is also review. See in terminating plaintiff’s discretion em- 472-73, 42; Mich.App. 156 at 402 N.W.2d ployment where economic reasons made Mich.App. 565-66, 164 Bhogaonker, at 417 necessary. Consequently, it we conclude Accordingly, N.W.2d 501. we hold that to impossible that it plaintiff’s would be for Boynton’s challenges the extent claim the supported and, claim to be at trial there- “justness” of economically TRW’s motivat fore, summary judgment appropri- position, ed decision to eliminate his sales a ate. unfilled, position left TRW is entitled to a 472-73, at Id. 402 N.W.2d judgment as a matter of law.

Similarly, in Bhogaonker, supra, Michi gan’s appeals court of affirmed a trial III. court’s entering judgment decision a of no holding Boynton Our that pre is employer cause of action for the defendant attacking “justness” cluded from the wrongful of discharge predicated a action TRW’s decision to terminate upon employ economic reduction in force. Dr. Bhogaonker, preclude Boynton ment does not from permanent employee a chal of Met ropolitan lenging procedure Hospital, followed TRW in was terminated because making discharge of economic its determination to him conditions which resulted in Bhogaonker co-workers, staff reductions. rather than one of alleged Dr. his three Metropolitan that employ Boyn terminated his two of whom had less than ment without cause in of Boynton violation its con ton. claims that TRW violated its not, obligations. tractual laying The doctor did employees solely of on

H85 50(b) Rules of Civil that “Rule Federal seniority. To the extent basis for a requires party that a move such a Procedure the existence of Boynton proven has directed verdict at close of all the evi a claim stated policy, he has prerequisite dence as a to its motion upon he relied regardless of whether not Reisz, judgment Roper, 718 n.o.v.” IBG v. Toussaint, 408 Mich. at policy. See (11th 1004, Cir.1983)(citing 1007 Fed. F.2d Damrow, 880; N.W.2d 613 n. note). 50(b) advisory committee R.Civ.P. 363-64, 337 at Mich.App. “A motion for a directed verdict at had trial, argued that At plaintiff’s close of case will not suffice indicating any produce failed evidence unless it is renewed at the close of all seniority-based had followed that TRW Pro (citing Special evidence.” Id. point during Boynton’s layoff policy at Ltd., motions, Inc. v. Photos Southwest company. According to tenure with (5th Cir.1977)). 559 F.2d See also TRW, only that his own Boynton showed National Trust Co. v. American Bank & understanding company’s subjective (6th Dean, Cir.1957). “A liti 249 F.2d 82 seniority. it was based policy was that gant has moved for a directed verdict who subjective expectancy on mere Since “a prior point at some to the conclusion create a employee ... not part of an [does] trial, failed to the motion at but renew claim[,]” legitimate Schwartz ] [Toussaint evidence, held to close of all the is thus Co., Mich.App. Michigan Sugar right judg have waived to move denied, (1981), 308 N.W.2d obstante Bohrer v. ment non verdicto.” omitted), (citation (1982) Cir.1983), 414 Mich. 870 (5th Corp., 715 Hanes F.2d at a directed both TRW moved for verdict denied, 1026, 104 rt. 465 U.S. S.Ct. ce after the Boynton’s case and the close (1984)(citations omit 79 L.Ed.2d The district its verdict. announced ted). court denied both motions. Boynton argues that failure to TRW’s

Boynton argues that technical TRW’s its motion a directed verdict renew precluded fail- case the district noncompliance the close of its with Ped.R.Civ.P. court, court, from consequently at the ing to for a directed verdict move addressing post-ver- claim TRW’s proofs failing to close of defendant’s of its for a directed dict renewal motion post-verdict motion as one characterize its equivalent of a the functional verdict was notwithstanding the verdict notwithstanding the motion for right a waiver TRW’s constitutes argues further even verdict. sufficiency challenge the Rule noncompliance if literal TRW’s proofs appeal. trial and on At both at excused, 50(b) “renewed motion case, close of the district qualify as verdict” fails to for a directed took motion for directed verdict judgment n.o.v. motion expressed and its inten- under advisement There- jury. tion the case the to submit strictly enforced some courts have While after, witness, but one Grace TRW called 50(b), more adopted “others a Rule have Napolitan, former of indus- TRW’s director noncom- approach party’s toward a flexible relations, rested Bohrer, trial and its case without pliance its 715 F.2d terms.” renewing (citations omitted). motion for a verdict. directed While at 216 “[i]t testimony practice to Napolitan’s approximately certainly lasted the better and safer verdict at the basically repetitive the motion directed one half hour and renew evidence,” all the testimony wit- the close of prior Boynton’s the jury its verdict nesses. After the returned 50(b) in case of Rule application [t]he “re- Boynton, moved to light favor of examined in the “should be pur- a verdict.” particular new our motion for directed accomplishment [its] Finding presented general had suffi- as context of pose as well the concerned in question, securing fair trial for all cient evidence to create quest for truth.” court denied TRW’s motion. (7th Coughlin, Quinn

Bonner v. 657 F.2d (quoting 715 F.2d at 217 v. South- Cir.1981) (citations omitted). Products, Inc., Commenta- west 597 F.2d Wood judicial (5th Cir.1979)). tors also noted the have trend to- 50(b): approach ward a flexible to Rule unpersuaded by Boyn We are also fairly recent cases have held that [S]ome argument ton’s that TRW’s “renewed mo judgment notwithstanding a motion for verdict,” tion for a directed made immedi may granted despite party’s be fail- ately after the had rendered its ver ure to renew motion for a directed dict, qualify is insufficient to as a motion (1) verdict where: The court indicated judgment n.o.v. raised no ob that the renewal of the motion would not jection admittedly imprecise phrase to the necessary preserve party’s motion, ology of eminently but it is (2) rights; following The evidence clear from the context of colloquy party's unrenewed motion for a di- Boynton fully and the court were aware of inconsequen- rected verdict was brief and purpose of TRW’s motion and had tial. Boynton objected, TRW would have cured 50.08, 5A Moore’s Federal Practice instantaneously. general, defect § (2d 1984). Wright 50-90 ed. “appellate See also 9 C. point courts will not consider a Miller, & A. Federal Practice and Proce- alleged not raised when below error (1971). dure: Civil at 597-98 could readily have been if timely § cured objection had been made.” Ebker v. Tan unique case, Under facts of this International, Ltd., Jay 739 F.2d we are convinced that TRW’s technical non (2d Cir.1984).3 50(b) compliance failing with Rule renew its directed verdict motion at the end reviewing Before the trial court’s Napolitan’s testimony did not bar the rulings on TRW’s motions challenging the considering post- district court from sufficiency Boynton’s evidentiary verdict motion to “renew our motion for a proofs, we note sitting that a federal court directed verdict” as a judg motion for a diversity case must apply the forum ment n.o.v. The district court took TRW’s state’s standard for a directed verdict and a verdict, motion for a directed made at the judgment notwithstanding the verdict since case, close of under advisement motions, governing federal rule both “get and indicated its firm intent to 50(a), specify Fed.R.Civ.P. does not a stan jury.” case to the in evidence TRW Sears, dard. Briney Co., Roebuck & troduced in its case-in-chief was brief and (6th Cir.1986). 782 F.2d Under largely testimony cumulative of the previ Michigan law, standards of review “[t]he ously elicited from witnesses. for denials of motions for directed verdict circumstances, Under the we that no find judgment notwithstanding the verdict logical purpose would by holding be served are identical.” Volkswagen Bonelli v. precluded that the district court was from America, Inc., Mich.App.483, 514 n. entertaining TRW’s motion for a (1988) (citing N.W.2d 213 Matras v. agree n.o.v. We with the Fifth Circuit’s Co., 675, 681-82, Amoco 424 Mich. Oil that, conclusion Bohrer (1986)). Further, N.W.2d 586 under Michi gan appellate demand a law an reviewing slavish adherence to the a trial [t]o procedural sequence court’s denial of a require and to these defendant’s motion for a defendants, case, directed verdict or a to articulate the notwith standing the verdict words of renewal once the motion had advisement, been taken under would be testimony, must view the legit- and all “to to a rigid succumb nominalism and a imate may inferences that be drawn equally therefrom, trial scenario as at variance as in light the most favorable to spirit ambush with the plaintiff our rules.” the and determine whether the Ebker, the Second procedural objection "plaintiff's Circuit held that the no and counsel untimely defendants’ fully motion to renew their mo- and the court were aware that defendants’ qualified tion for a directed verdict asking, as a motion inartistically, counsel was however the judgment plaintiff n.o.v. where the offered court to enter n.o.v.” 739 F.2d at 823.

H87 pri agreed All at to establish witnesses trial evidence is sufficient that Amoco 1979, Matras v. Oil prior ma policy such case. would have facie Co., 424 675, 681-82, 385 N.W.2d put policies Mich. been unwritten. TRW first (1986). jurors regarding If reasonable could layoffs writing 586 in in 1979. Ac conclu honestly cording have reached different to Boynton, Bengston assured him sions, have been meeting then the motions should Dayton at their 1972 in that case have been policies denied and the should changed had not since jury, the since no court has decided Boynton last worked for TRW in 1969. authority the under such a circumstance Boynton testified as to “understanding” that of to substitute its policy layoffs: of TRW’s on policy “[T]he Nichols, Id.; Dickerson v. 161 jury. as far as I am concerned was that whoever Mich.App. 409 N.W.2d 741 had was last to be laid off.” (1987). Boynton, The court asked “You don’t know your knowledge policy was, what the Bonelli, 513-14, do Mich.App. at 421 166 answered, you?” Boynton “Not omitted). exactly, (footnote According- N.W.2d no.” stated that his under ly, must the record to determine we review standing policy of TRW’s was jurors “based on honestly reasonable could whether forty years experience in discussing and that established a have concluded many employees solely people the matters with who policy laying off based were top management positionsf,]” including seniority. on “management way up presi all the to the Toussaint, employer’s Under an However, Boynton dent.” never identified “can rise to con policy give statement purported the nature or context of his con rights employees tractual without evi “top management,” versations with nor did agreed parties mutually that the that dence identify specific he pur individuals who policy statements would create contrac portedly that told him TRW adhered to a rights employee,” though in the even tual seniority-based layoff policy. Judge As policy made to the state “no reference was original pan Wellford’s concurrence to the pre-employment and ment interviews notes, Boynton majority opinion el’s “con learn employee does not of its existence layoffs ceded ... one of two Toussaint, hiring.” until after his Chicago working office he while was 614-15, Further, Mich. at 292 N.W.2d 880. TRW in the mid-70’s based on perti an conduct and other other, seniority. The laid off at the same may nent circumstances establish un time, seniority, on but in not based providing written “common law” ” ‘personality problem.’ Boynton, volved equivalent of a cause termination op. slip at 20 n. 2. policy. understandings, prom Rules and Bengston testified 1972 and that between ulgated employer, fostered manager serving while as sales may justify legitimate claim contin TRW, “approximately he off six or laid employment. ued Bengston eight people.” stated that he Schwartz, Mich.App. at 388 N.W. unpublished policy then followed TRW’s (citation omitted). Nonetheless, 2d 459 making his determination as to which em- employer’s purported policy must exist ployees lay to his knowl- employee’s somewhere other than edge unpublished policy did not dif- plaintiff’s subjective mind. own ex “[A] writing fer from TRW reduced to create pectation does not an enforceable Employee in its hand- Handbook. right.” Sepanske, Mich.App. contract provides book as follows: Schwartz, (citing at involuntary separation layoff A is an 459). Mich.App. 388 N.W.2d Based Company poor from the when economic record, upon a careful review we conditions, operating general business or nothing conclude that has shown activity, problems, reorga- reduced work expecta subjective more than that his own restructuring require nization a or reduc- he laid tion was that would not be off tion in the workforce. he had more than two of because his three co-workers. LIVELY, management layoff Judge concurring. determines a Circuit

When facilities, necessary one or more it at result, I concur the since the en banc transfer, [sic], layoff will and/or make agreed unanimously panel with the facilities, job reductions areas/de- within that the should be reversed be- partments, skill, quality on the basis of of the district court’s failure to sub- past performance, present ability mitigation mit to the the issue of perform required and available damages. equal, being work. All other factors Nevertheless, I continue to feel that the determining em- seniority governs in en banc court should not issue a decision on ployees off, transferred, to be laid applicability of the Toussaint doctrine reduced one to an- from classification case, other. to the facts of this but should await clarification of that doctrine the Michi- added.) (Emphasis gan Supreme Court. Maloney, Boynton’s supervisor Richard and the who made the decision to diversity This is a case that is controlled lay Boynton rather than of his off one by Michigan law. state courts of Mi- co-workers, agreed Bengston’s three chigan opinions, have issued countless of- testimony. Maloney testified that TRW’s conflicting, application ten on the of Tous- policy policy” 1979 written “same saint various situations. This court’s policy previously as the unwritten followed binding not on decision is of the state policy guided TRW and which courts, building separate body and we are a lay Boynton in decision to June of 1980. of Toussaint law the federal courts of Napolitan, former of indus- director Michigan. I it is essential for believe trial relations and the author of TRW’s Michigan Supreme clarify Court to Handbook, Employee testified that body poor that it of law and is a use of represented the handbook a codification of limited resources for this court to deal with general practices proce- unwritten in an en these issues banc decision. previously dures which TRW had followed. sum, overwhelming offered evi- layoff policy perti- dence that its at all factors, myriad

nent times based on a important seniority. least of which was subjective

Other than his own belief employees according were laid off to se- BLANKENSHIP, on behalf Sammie Gail niority, Boynton offered no evidence of of herself and on behalf of all others contrary policy. Boynton’s pro- failure to similarly situated in the of Ken- State any significant duce evidence from which Finch, tucky; Georgia on behalf of her- reasonable could infer that TRW fol- similarly situated, self and all others et seniority-based lowed undermines al., Plaintiffs-Appellees, of his claim basis that TRW breached discharge-related employ- terms of his Accordingly, ment contract. we hold that HEALTH & SECRETARY OF HUMAN denying erred in district court SERVICES, Defendant-Appellant. motion for a directed close of verdict case, or, 86-6240. alternatively, No. judgment notwithstanding the verdict. Appeals, United States Court of Sixth Circuit.

IV. Argued Jan. disposition Our of this obviates remaining the need to address TRW’s as- Decided Oct. signments of error. For the reasons stat- ed, we REVERSE

district court and REMAND the case with

instructions to dismiss claim.

Case Details

Case Name: Richard S. Boynton v. Trw, Inc.

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 6, 1988

Citation: 858 F.2d 1178

Docket Number: 83-1773

Court Abbreviation: 6th Cir.