Craig Hecht v. National Heritage Academies Inc ( 2014 )

STATE OF MICHIGAN
COURT OF APPEALS
CRAIG HECHT, UNPUBLISHED
October 28, 2014
Plaintiff-Appellee,
v No. 306870
Genesee Circuit Court
NATIONAL HERITAGE ACADEMIES, INC., LC No. 10-093161-CL
Defendant-Appellant.
Before: SERVITTO, P.J., and CAVANAGH and WILDER, JJ.
PER CURIAM.
Defendant appeals as of right a judgment entered following a jury verdict in favor of
plaintiff in this employment discrimination action. We affirm.
Defendant is a for-profit company that runs charter schools throughout the country.
Plaintiff, a 35-year-old white male at the time of his firing, had been employed at a teacher in an
at-will capacity with defendant since 2001. At the time of the incident giving rise to this
litigation, plaintiff taught third grade at Linden Charter Academy (“LCA”), whose student body
was approximately 93% African American.
On November 3, 2009, plaintiff was in his classroom with his students along with Floyd
Bell, an African American special education paraprofessional assigned to plaintiff’s classroom.
At some point, Lisa Code, a white woman, who worked in the school library, entered the
classroom to return a table she had borrowed. Realizing she had borrowed a brown table and
was bringing a white table into the classroom, Code asked plaintiff if he cared whether he was
getting a white table rather than the brown one she had actually borrowed. According to Code,
plaintiff said he definitely liked the white table better than the brown and that all of the brown
needed to go. Code thought that plaintiff was trying to be funny but was shocked because she
knew how it sounded and thus asked plaintiff, “What?” Plaintiff indicated that he was joking
with Bell at which point Code called “a big foul” on plaintiff.1 Bell then called a foul “to the
1
LCA employees created a “social contract” with each other, such that if an individual stated
something that someone else found offensive or inappropriate, the person offended was to “call a
foul” on the speaker. In response, the speaker was to give two “ups” to the person who called
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highest power.” Code immediately reported to Corinne Weaver, the dean of LCA,2 a white
woman, that plaintiff had said “[W]hite is better than brown anyway. Brown should burn.”
Code also reported to Weaver that plaintiff looked over his shoulder at a group of students and
asked them, “White is better than brown, right?”
Bell also reported the incident to Weaver. As a result, Weaver asked plaintiff to come to
her office to discuss the incident. Plaintiff explained that he had not meant any racist intent but
merely meant his comments as a joke, like he had heard many times before at the school.
Plaintiff asked to speak to Bell, who arrived at the office and the two shook hands.
Following her meeting with plaintiff, Weaver contacted the principal of LCA, Linda
Caine-Smith, to advise her about the incident. As principal, Caine-Smith, a white woman, was
the highest ranking position at LCA. The next morning, Caine-Smith spoke with plaintiff, Bell
and Code and asked them all to prepare written statements about the incident. Caine-Smith also
reported the incident to Courtney Unwin, the employee relation manager at defendant’s office in
Grand Rapids. Unwin reviewed the written statements and spoke to plaintiff by telephone.
Noting that plaintiff’s statement to her contradicted his written statement in some respects,
Unwin informed plaintiff that an investigation of the incident would proceed and that his
dismissal was an option. Plaintiff was thereafter placed on administrative leave. According to
Bell, plaintiff approached him and pleaded with him to change his statement indicating that he
had a wife and child. Bell advised plaintiff that he would not lie. Plaintiff also left two phone
messages for Code, but she did not return his calls.
Bell reported his encounter with plaintiff to Caine-Smith and prepared a written statement
concerning the same. Caine-Smith also learned that plaintiff had attempted to contact Code and
believed he was attempting to interfere with their investigation. She thus called Unwin to
discuss this concern. Following their discussion, Caine-Smith and Unwin decided to terminate
plaintiff’s employment for the stated reasons that: (1) plaintiff made an inappropriate racial
statement in front of students; and, (2) plaintiff interfered with their investigation of the incident.
Plaintiff filed a complaint against defendant, alleging racial discrimination in violation of
the Elliott-Larsen Civil Rights Act, MCL 37.2201 et seq. Plaintiff alleged that race was a
substantial factor in defendant’s decision to terminate plaintiff’s employment and that he was
treated less favorably than similarly situated African-American employees. The jury agreed,
rendering a verdict in his favor in the amount of $535,120.00.
On appeal, defendant first contends that there was insufficient evidence to support the
jury’s verdict that racial discrimination was a factor in plaintiff’s termination such that the trial
court erred in denying its motion for JNOV. We disagree.
This Court reviews a trial court’s decision on a motion for JNOV de novo. Sniecinski v
Blue Cross and Blue Shield of Michigan, 469 Mich. 124, 131; 666 NW2d 186 (2003). We review
the foul, which are positive statements about the person. In this instance, Plaintiff testified that
he did not give any “ups” to either Bell or Code because he did not hear any foul called.
2
The dean is the second highest position at LCA.
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the evidence and all legitimate inferences in the light most favorable to the nonmoving party,
recognizing that a motion for JNOV should be granted only if the evidence viewed in this light
fails to establish a claim as a matter of law. Id.
MCL 37.2202 provides, in pertinent part, as follows:
(1) An employer shall not do any of the following:
(a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an
individual with respect to employment, compensation, or a term, condition, or
privilege of employment, because of religion, race, color, national origin, age,
sex, height, weight, or marital status.
“The ultimate question in every employment discrimination case involving a claim of
disparate treatment is whether the plaintiff was the victim of intentional discrimination.” Reeves
v Sanderson Plumbing Products, Inc, 530 U.S. 133, 153; 120 S. Ct. 2097; 147 L. Ed. 2d 105 (2000).
Proof of discriminatory treatment may be established by direct evidence or by indirect or
circumstantial evidence. Sniecinski, 469 Mich. at 132. In Hazle v Ford Motor Co, 464 Mich. 456,
462; 628 NW2d 515 (2001), our Supreme Court cited with approval the United States Court of
Appeals for the Sixth Circuit's definition of “direct evidence” as “evidence which, if believed,
requires the conclusion that unlawful discrimination was at least a motivating factor in the
employer's actions.” Id., quoting Jacklyn v Schering Plough Healthcare Products Sales Corp,
176 F3d 921, 926 (CA 6, 1999).
In this matter, the crux of plaintiff’s assertion that he was subject to disparate treatment
was that “racial bantering” occurred in the school on many occasions but that the others who
engaged in racial bantering were not punished because they were African-American. Plaintiff
asserted that the incident that he was involved in also constituted racial bantering, but that he was
discharged because he was white.
The only direct evidence of discrimination was a statement attributed to Caine-Smith, one
of the decision-makers who ultimately decided to discharge plaintiff. When relating the incident
in plaintiff’s classroom to Caine-Smith, Weaver testified that Caine-Smith also indicated to her
that she had heard racial bantering at the school before:
[Plaintiff’s Counsel]: Did you bring that information to her attention?
Weaver: I think I told her that, you know, those things do happen around
here, but they were under different circumstances.
[Plaintiff’s Counsel]: How did she respond when you said, “those things
do happen around here?”?
Weaver: I—I think her point was that it happens amongst African
Americans. And it’s not the other way around. And this wh—and that this one
was reported, someone was offended, and we had an obligation to follow up on it.
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There need be no inference drawn to understand that Caine-Smith’s response was an
acknowledgement that while racial bantering among African Americans occurred, it did not
occur between a white person such as plaintiff and an African American, and in firing plaintiff
for such bantering one could conclude that Caine-Smith was motivated at least in part by
plaintiff’s race. In other words, if Weaver’s interpretation is believed by the trier of fact, it
would demonstrate that plaintiff’s race was at least a motivating factor in the employer’s actions
because if he were a black person saying that same comment to another black person, then he
would not have been punished. Caine-Smith stating to Weaver that the situation was
distinguishable because the incident was reported and someone was offended certainly is
important, but it does not negate her previous statement.
It is true that Weaver’s testimony constitutes a summation of what Caine-Smith may have
meant rather than a statement of what Caine-Smith actually said. As such, it could reasonably be
subject to differing interpretations. For example, the statement or point attributed to Caine-
Smith could be interpreted to mean that because plaintiff was white, his racially based comments
could not be tolerated in the same way that comments made by African Americans could be, or
that she felt pressure to impose a stricter punishment on plaintiff for his comments because he
was white. An equally plausible interpretation could be that Caine-Smith was searching for an
explanation or rationalization as to why no one had previously complained to the administration
about racial bantering at the school and found one in the fact that prior bantering had occurred
only between African Americans and not between a white person such as plaintiff and an African
American such as Bell or between only white persons such as plaintiff and Code. In either event,
however, plaintiff’s race was clearly part of the equation. And, that the statements could be
subject to differing interpretations supports upholding the jury’s verdict.
In DeBrow v Century 21 Great Lakes, Inc (After Remand), 463 Mich. 534, 540; 620
NW2d 836 (2001), our Supreme Court held that a single remark in the context of a discussion
regarding an employee’s termination, and the remark’s weight and believability are matters for
the fact-finder to determine. In that case, after the plaintiff was fired from his job, he sued his
former employer, alleging age discrimination. The trial court granted summary disposition in
favor of the employer and a panel of this Court twice affirmed. Our Supreme Court reversed,
holding that the singular statement to the plaintiff by his supervisor that he was “getting too old
for this shit” constituted direct evidence of age discrimination. Id. at 538. Relevant to the instant
matter, the DeBrow Court stated:
We recognize that this remark may be subject to varying interpretations. It might
reasonably be taken as merely an expression of sympathy that does not encompass
a statement that the plaintiff's age was a motivating factor in removing him from
his position as an executive. However, it is well established that, in reviewing a
decision on a motion for summary disposition under MCR 2.116(C)(10), we must
consider the documentary evidence presented to the trial court in the light most
favorable to the nonmoving party. Id. at 538-539.
The Supreme Court concluded, “While a factfinder might be convinced by other evidence
regarding the circumstances of the plaintiff's removal that it was not motivated in any part by the
plaintiff's age and that the facially incriminating remark was no more than an expression of
sympathy, such weighing of evidence is for the factfinder . . . .” Id. at 539.
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While this matter involves a motion for JNOV rather than a motion for summary
disposition, the standard of review for both motions is the same and it is the standard of review
that we must apply that is the crucial factor in resolving this matter. Again, reversal is permitted
when reviewing the denial of a motion for JNOV only if the evidence, while viewed in a light
most favorable to the plaintiff, fails to establish a claim as a matter of law. Sniecinski, 469 Mich.
at 131. When reasonable jurors could honestly reach different conclusions regarding the
evidence, the jury verdict must stand. Zantel Marketing Agency v Whitesell Corp, 265 Mich. App.
559, 568; 696 NW2d 735 (2005).
Consistent with DeBrow, even if Weaver’s recollection of Caine-Smith’s alleged
statement was subject to differing interpretations, it was properly up to the jury to determine
which interpretation fit Caine-Smith’s intention. We must view the evidence in the light most
favorable to the non-moving party upon review and it is not irrational to conclude that the jury
made a determination of Caine-Smith’s statement that was unfavorable to defendant’s position.
Such a determination was within the jury’s realm just as it was within the jury’s realm to weigh
and consider all of Caine-Smith’s remarks and ultimately decide if plaintiff’s race was a factor in
defendant’s decision to terminate plaintiff’s employment.
While defendant additionally argues that plaintiff presented insufficient circumstantial
evidence to survive the burden-shifting approach set forth in McDonnell Douglas v Green, 411
U.S. 792; 93 S. Ct. 1817; 36 L. Ed. 2d 888 (1973), the burden-shifting approach is inapplicable not
only where direct evidence is offered, as it was here, but simply in general once the matter has
proceeded to trial and is passed to the jury. “Where direct evidence is offered to prove
discrimination, a plaintiff is not required to establish a prima facie case within the McDonnell
Douglas framework, and the case should proceed as an ordinary civil matter.” DeBrow, 463
Mich. at 539-540 (quotations omitted). More importantly, as our Supreme Court explained in
Hazle, 464 Mich. at 466-467, quoting Texas Dep’t of Community Affairs v Burdine, 450 U.S. 248,
256 n 8; 101 S. Ct. 1089; 67 L. Ed. 2d 207 (1981):
[t]he McDonnell Douglas burden-shifting framework is merely intended ‘to
progressively sharpen the inquiry into the elusive factual question of intentional
discrimination.’ It is important to keep in mind, therefore, that for purposes of
claims brought under the Michigan Civil Rights Act, the McDonnell Douglas
approach merely provides a mechanism for assessing motions for summary
disposition and directed verdict in cases involving circumstantial evidence of
discrimination. It is useful only for purposes of assisting trial courts in
determining whether there is a jury-submissible issue on the ultimate fact question
of unlawful discrimination. The McDonnell Douglas model is not relevant to a
jury's evaluation of evidence at trial . . . . See Gehring v Case Corp, 43 F 3d 340,
343 (CA 7, 1995) (explaining that, in federal discrimination cases, “[o]nce the
judge finds that the plaintiff has made the minimum necessary demonstration [the
‘prima facie case’] and that the defendant has produced an age-neutral
explanation, the burden-shifting apparatus has served its purpose, and the only
remaining question-the only question the jury need answer-is whether the plaintiff
is a victim of intentional discrimination”).
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The McDonnell Douglas framework approach “was adopted because many plaintiffs in
employment-discrimination cases can cite no direct evidence of unlawful discrimination. The
courts therefore allow a plaintiff to present a rebuttable prima facie case on the basis of proofs
from which a factfinder could infer that the plaintiff was the victim of unlawful discrimination.”
DeBrow, 463 Mich. at 537-538 (emphasis in original).
As the Sixth Circuit Court of Appeals explained, there was no jury in McDonnell
Douglas and “ ‘The critical issue,’ as the Supreme Court explained, ‘concerns the order and
allocation of proof in a private, non-class-action challenging employment discrimination.’
[McDonnell Douglas, 411 U.S. at 800]. The ‘order and allocation of proof’ are not matters for
which juries are responsible.” Brown v Packaging Corp of America, 338 F3d 586, 591 (CA 6
(2003) (emphasis in original). Thus, the McDonnell Douglas analysis is used only when
plaintiff’s establishment of a prima facie case is at issue. Once a jury submissible issue on the
ultimate fact of whether there has been unlawful discrimination has been found-i.e., once
summary disposition and directed verdict motions have been resolved, the need for the analysis
has passed. In the instant matter, no summary disposition decision is at issue, nor is the
defendant’s directed verdict motion being appealed.
Plaintiff’s claim was for disparate treatment. Thus, had he not provided direct evidence
of discrimination, in order to defeat defendant’s motion for JNOV, he must have provided
sufficient circumstantial evidence that: (1) he was a member of a protected class; (2) that an
adverse employment action was taken against him; (3) that he was qualified for the position; and,
(4) that others, similarly situated and outside the protected class were unaffected by the
employer's adverse conduct. See, e.g., Town v Michigan Bell Telephone Co, 455 Mich. 688, 695;
568 NW2d 64 (1997). So long as the jury found some type of evidence of intentional
discrimination-direct or circumstantial-its verdict must be upheld.
There is no dispute that plaintiff, a white male, was a qualified teacher who suffered an
adverse employment action. At trial, evidence was provided concerning several instances of
racial “banter” (which plaintiff claims his comments constituted) wherein those engaging in the
same were not punished. On a professional development day, plaintiff was with several other
people, when one of them, an African American man, made a statement about a Dora the
Explorer mural on the wall. The employee stated that because the paint on Dora’s skin was so
dark, she should be called “Laquisha” instead. Bell was present during this incident. On another
professional development day, some staff members were on a bus when Weaver was asked in
casual conversation what she was doing for dinner that night. When she responded that she was
making pork chops, an African American staff member replied, “Why would you be making
pork chops; you’re white?” Plaintiff was one of approximately 25 staff members on the bus
when this incident occurred. According to Weaver, on another occasion, an African American
staff member told her she should not eat soul food because she was white. Plaintiff testified to
an incident where he saw the school secretary, who is African American, call to one of the
students, saying “[H]ey, come here light skinned.” When Code was working as a secretary at the
school, an African American staff member had told her she could not do something because she
was white. Though she felt the comment was inappropriate, Code testified that she did not report
the incident. Weaver also testified to hearing the “n” word used several times at LCA by African
American staff members and that she had heard African American staff members engage in
racial bantering up to 20 times.
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It is undisputed that no African American staff member was ever disciplined in any
manner for racial bantering, even though the dean was the target of such bantering on several
occasions. It is true that plaintiff’s remarks appear to be the only ones that generated a complaint
that was forwarded to the principal. However, Unwin, defendant’s employee relations manager
(and the second party involved in the decision to terminate plaintiff) testified that Weaver had an
obligation to report all serious racial remarks, including the use of the “n” word, even if it was
spoken by an African American individual and it was incorrect for her to have failed to do so.
Plaintiff was the only person at LCA to ever be disciplined for making a racial remark.
The above constitutes sufficient circumstantial evidence that plaintiff was similarly
situated to African American employees who had made racial remarks at school and to other
employees who were not punished. The trial court thus properly denied defendant’s motion for
JNOV.
Defendant next contends that disclosures concerning plaintiff’s unprofessional conduct
that it made in response to requests by prospective employers of plaintiff should not have been
admitted into evidence. According to defendant, the disclosures were mandatory pursuant to
MCL 380.1230b and the trial court erred in admitting them into evidence because the evidence
was irrelevant. We disagree.
We review preserved evidentiary issues for an abuse of discretion. In re Utrera, 281
Mich. App. 1, 15; 761 NW2d 253 (2008). An abuse of discretion occurs when the trial court
chooses an outcome that falls “outside the range of principled outcomes.” Id.
In general, relevant evidence is admissible and irrelevant evidence is not admissible.
MRE 402. Relevant evidence “means evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” MRE 401. County of Wayne v Michigan State Tax
Com'n, 261 Mich. App. 174, 196; 682 NW2d 100 (2004).
The disclosures at issue were required under MCL 380.1230b, which provides in relevant
part:
(1) Before hiring an applicant for employment, a school district, local act school
district, public school academy, intermediate school district, or nonpublic school
shall request the applicant for employment to sign a statement that does both of
the following:
(a) Authorizes the applicant's current or former employer or employers to disclose
to the school district, local act school district, public school academy,
intermediate school district, or nonpublic school any unprofessional conduct by
the applicant and to make available to the school district, local act school district,
public school academy, intermediate school district, or nonpublic school copies of
all documents in the employee's personnel record maintained by the current or
former employer relating to that unprofessional conduct.
(b) Releases the current or former employer, and employees acting on behalf of
the current or former employer, from any liability for providing information
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described in subdivision (a), as provided in subsection (3), and waives any written
notice required under section 6 of the Bullard-Plawecki employee right to know
act, Act No. 397 of the Public Acts of 1978, being section 423.506 of the
Michigan Compiled Laws.
(2) Before hiring an applicant for employment, a school district, local act school
district, public school academy, intermediate school district, or nonpublic school
shall request at least the applicant's current employer or, if the applicant is not
currently employed, the applicant's immediately previous employer to provide the
information described in subsection (1)(a), if any. The request shall include a
copy of the statement signed by the applicant under subsection (1).
(3) Not later than 20 business days after receiving a request under subsection (2),
an employer shall provide the information requested and make available to the
requesting school district, local act school district, public school academy,
intermediate school district, or nonpublic school copies of all documents in the
employee's personnel record relating to the unprofessional conduct. An
employer, or an employee acting on behalf of the employer, that discloses
information under this section in good faith is immune from civil liability for the
disclosure . . . .
Though defendant maintains that the disclosures should not have been admitted into evidence
because subsection (3) provides for immunity from civil liability, such immunity applies only
“for the disclosure” itself. In other words, a defendant cannot be sued for making a good-faith
disclosure under the statute. The statute does not, however, create a privilege whereby evidence
of the disclosure is inadmissible under all circumstances. Plaintiff in this case did not sue
defendant for the disclosure but instead sued defendant for racial discrimination on the basis of
his termination. The fact that the disclosures may be relevant in the discrimination lawsuit does
not implicate the immunity granted by statute.
A plaintiff bringing a civil rights action may bring such an action for “damages,” which is
defined as “damages for injury or loss caused by each violation” of the Elliott-Larsen Civil
Rights Act, MCL 37.2810 et seq. MCL 37.2801(3). A plaintiff bears the initial burden of
proving his or her damages, but once that burden has been met, the respondent bears the burden
of demonstrating that the claimant failed to mitigate his or her damages. Department of Civil
Rights v Horizon Tube Fabricating, Inc, 148 Mich. App. 633, 638; 385 NW2d 685 (1986). The
respondent must do so by establishing “(1) that the damage suffered by plaintiff could have been
avoided, i.e., that there were suitable positions available which plaintiff could have discovered
and for which he was qualified; and (2) that plaintiff failed to use reasonable care and diligence
in seeking such a position.” Id., quoting Sias v City Demonstration Agency, 588 F2d 692, 696
(CA 9, 1978). In this matter, plaintiff had the burden of proving his damages and, anticipating
that defendant would claim that he failed to mitigate his damages, could reasonably address any
such argument by showing that he attempted to obtain other teaching jobs but was unable to do
so due to the disclosures and instead took a job outside of the area of teaching that paid
considerably less than his teaching position with defendant. The evidence was thus relevant and
the trial court did not abuse its discretion in admitting the evidence.
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Defendant also argues that even if relevant, the evidence should have been excluded
under MRE 403 because the probative value of the evidence was substantially outweighed by the
danger of unfair prejudice. Defendant did not raise this argument before the trial court. We thus
review this unpreserved evidentiary issue to determine whether there was plain error affecting
defendant’s substantial rights. See, e.g., Hilgendorf v St. John Hosp and Medical Center Corp,
245 Mich. App. 670, 700; 630 NW2d 356 (2001).
“Evidence is unfairly prejudicial when there exists a danger that marginally probative
evidence will be given undue or preemptive weight by the jury.” People v Crawford, 458 Mich.
376, 398; 582 NW2d 785, 796 (1998). The probative value of the disclosures was not merely
marginally probative, given that it helped explain why plaintiff failed to obtain another teaching
job after he was fired. Additionally, it was not clear that the jury would have given this evidence
undue weight because the jury was instructed that defendant was required by law to provide the
disclosures. Defendant has thus failed to establish any plain error affecting its substantial rights
in the admission of the challenged evidence.
Defendant’s final argument on appeal is that the jury’s award of future economic
damages or “front pay” was excessive and unsupported by the evidence such that it was entitled
to a new trial or remittitur premised upon this award. We disagree.
We review a trial court’s decision on a motion for new trial or remittitur for an abuse of
discretion. Shaw v Ecorse, 283 Mich. App. 1, 17-18; 770 NW2d 31(2009). In conducting our
review, we view all of the evidence in the light most favorable to the nonmoving party. Id. at 18.
“In determining whether remittitur is appropriate, a trial court must decide whether the
jury award was supported by the evidence. This determination must be based on objective
criteria relating to the actual conduct of the trial or the evidence presented.” Silberstein v Pro–
Golf of America, Inc, 278 Mich. App. 446, 462; 750 NW2d 615 (2008) (citation omitted). Our
Supreme Court has indicated that the objective factors that should be considered by this Court
are:
(1) whether the verdict was the result of improper methods, prejudice,
passion, partiality, sympathy, corruption, or mistake of law or fact; (2) whether
the verdict was within the limits of what reasonable minds would deem just
compensation for the injury sustained; and (3) whether the amount actually
awarded is comparable with awards in similar cases both within the state and in
other jurisdictions. [Freed v Salas, 286 Mich. App. 300, 334; 780 NW2d 844
(2009) (citation omitted).]
If the award falls reasonably within the range of the evidence and within the limits of what
reasonable minds would deem just compensation, the jury award should not be disturbed.
Frohman v Detroit, 181 Mich. App. 400, 415; 450 NW2d 59 (1989).
While defendant first contends that the existence of any front pay is too speculative, that
does not preclude an award of damages. Rather, “[i]n deciding whether to award such damages
the courts should look to (1) whether reinstatement would be a feasible remedy, (2) the
employee's prospects for other employment, and (3) the number of years remaining before the
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employee would be faced with mandatory retirement.” Riethmiller v Blue Cross and Blue Shield
of Michigan, 151 Mich. App. 188, 200-201; 390 NW2d 227 (1986). Moreover, “[t]he fact that
such damages may be speculative should not exonerate a wrongdoer from liability. Id. at 201-
202.
In this matter, it was clear that reinstatement was not a feasible remedy. The evidence
also made clear that it was highly unlikely that plaintiff would ever be able to obtain another
teaching position. As previously indicated, for every such potential employment opportunity,
defendant was obligated to provide the disclosures to plaintiff’s potential employers. MCL
380.1230b. Considering that plaintiff had been consistently told that his services were no longer
needed once his employer had received the disclosures, the jury could reasonably infer that the
pattern would continue. And, the evidence indicated that plaintiff, a relatively young man, had a
bachelor’s degree in elementary education and a master’s degree in educational leadership,
indicating that his education and qualifications appear to be primarily (if not solely) in the field
of education.
Defendant maintains that the fact that plaintiff cannot obtain employment as a teacher
due to the statutorily required disclosures means that his “injury” is not compensable. However,
the salient point is that the jury found that defendant had wrongfully discriminated against
plaintiff when it fired him. Thus, plaintiff was entitled to recover for any loss caused by the
violation in order to make him “whole.” See MCL 37.2801(3). Plaintiff was making $51,000
per year in defendant’s employ and, as a result of defendant’s wrongful conduct, was unable to
continue making this income. As a result of the disclosures, brought about by defendant’s
discriminatory conduct, he was unable to obtain another teaching position that may have paid a
similar amount. Instead, he was only able to secure employment outside of his field making
approximately $29,000 per year. The jury could reasonably award plaintiff the shortfall he was
expected to encounter going forward.
Further, it was not too speculative to presume that plaintiff would have continued to teach
as an employee of defendant for many years. The record reveals that plaintiff was passionate
about teaching and had favorable reviews as a teacher with defendant. Plaintiff was 35 years old
and had worked for defendant for eight years when he was fired. Consequently, the verdict
awarding plaintiff future damages in the amount of $485,000 ($22,000 shortfall multiplied by 22
years) was supported by the evidence. Viewing the evidence in a light most favorable to
plaintiff, the award fell within the range of the evidence and within the limits of what reasonable
minds would deem just compensation. Frohman, 181 Mich. App. at 415. The particular
circumstances in this case show that the trial court did not abuse its discretion in denying
defendant’s motion for a new trial or remittitur.
Affirmed.
/s/ Deborah A. Servitto
/s/ Mark J. Cavanagh
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