Rasheed v. Chrysler Corp.

¶1(separate opinion). I concur in the result of the majority opinion, which remands for further proceedings. I write separately because I *138do not join in the trifurcated procedure or in a number of other statements in the majority opinion.

¶2I

¶3The 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).]

¶4The 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.

¶5In 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.

¶6The implication in the majority opinion that federal cases support the proposition that a Michi*139gan court has broad discretion to fashion a remedy under the Civil Rights Act ignores the significant differences between title VII and the Civil Rights Act. The federal cases on which the majority relies construe an act of Congress (title VII) providing that on a finding that the respondent intentionally engaged in an unlawful employment practice "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, reinstatement or hiring of employees, with or without back pay . . ., or any other equitable relief as the court deems appropriate.”2 No such discretionary language appears in the Civil Rights Act. Thus, while it may be appropriate to look to federal title VII cases construing some aspects of the Civil Rights Act, they are not persuasive where a damage remedy has been sought under the Civil Rights Act.

¶7II

¶8Nor 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.

¶9The 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 *140whether to make a plaintiff whole. Further, the discretion concerning how to fashion the remedy does not appear as broad as the majority implies.

¶10In Albemarle Paper Co v Moody,3the 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.

¶11A 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. . . . "[Reinstatement, 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]).

¶12Similarly, in Taylor v Teletype Corp, 648 F2d *1411129, 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).]

¶13Professor 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.]

¶14From 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*142appropriate,5 and a federal court has discretion to determine whether these special circumstances exist, and, on finding special circumstances, to refuse to order reinstatement. As a general matter, though, a federal court does not appear to have broad discretion to refuse to reinstate a victim of unlawful employment discrimination.

¶15Even 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 cannot 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).]

¶16*143In short, where reinstatement is not possible and front pay is necessary to make whole a victim of discrimination, it appears that front pay is presumptively available to that victim.7

¶17Indeed, 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*144ployment Discrimination (2d ed), § 14.4.3, pp 24-25.]p[8]

¶18A federal court thus must choose a remedy that makes whole a victim of discrimination.

¶19hi

¶20The 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

¶21The 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 *145where the alleged failure to mitigate concerns the plaintiff’s rejection of an offer of employment (by his original employer) that differs from his original job or where the plaintiff reasonably refuses to accept an offer of employment from another company.11 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.12

¶22Assuming 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,13and neither may be resolved by the court as a matter of law unless reasonable minds could not *146draw different conclusions concerning conditionality or reasonableness. It will be a rare case in which reasonable minds could not differ concerning the conditionality of an offer or the reasonableness of a rejection.14

¶23IV

¶24The 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 *147federal courts enjoy under the federal Civil Rights Act.”15

¶25A

¶26The 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.”

¶27The 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 Act "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.”

¶28Section 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 *148legal or equitable remedies in the courts of this state.”18

¶29Manifestly, § 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.

¶30The 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.)

¶31The 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.

¶32To state the obvious, damages are a legal rem*149edy, an injunction is an equitable remedy. The choice whether to seek a legal (damage) or equitable (injunctive) remedy is, once again, confided by the constitution, as well as by the Legislature (§ 803), to the person alleging a civil rights violation.

¶33The 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.

¶34B

¶35The 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.

¶36I 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.

¶37The majority states that "a fair degree of discre*150tion is necessary to implement” the goal of ensuring that victims of discrimination are made whole. I might agree that where a victim of discrimination seeks an equitable (injunctive) remedy, a "fair degree of discretion” on the part of the trial court might be necessary to implement such a goal. That does not mean that where the victim of discrimination seeks a legal (damage) remedy in the exercise of the choice confided to the victim of discrimination by the constitution and the Civil Rights Act, this Court is empowered to confide to the courts of this state a degree of discretion, even a fair degree of discretion, in the name of making the victim of discrimination whole, to deny the victim his choice of a legal (damage) remedy. Comes the revolution there will be strawberries in January, you will like strawberries in January, and you will eat strawberries in January.

¶38C

¶39The 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.”

¶40There 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 rejecting 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*151vide a special verdict "in the form of a written finding on each issue of fact . . . .”21

¶41As 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.

¶42There 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.

¶43V

¶44I 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.

¶45I would also order the circuit court to set for trial the issue whether the plaintiff failed to miti*152gate his damages by unreasonably refusing the offer of reinstatement tendered by the defendant, and, on a finding that he did not unreasonably reject the offer, require the jury to determine the damages to be awarded until the plaintiff is reinstated, less the amount included therefor in the $50,000 already awarded.