Opinion
CASE NO.: 01-CV-71826-DT
February 6, 2003
OPINION
Plaintiff filed this action against her former employer asserting claims of pregnancy discrimination, hostile work environment, and breach of contract regarding unpaid sales commissions she allegedly earned while employed by Defendant. The Court granted Defendant's motion for summary judgment on the hostile work environment claim and the parties resolved the dispute over unpaid sales commissions. This case proceeded to a jury trial on Plaintiff's discrimination claim.
In her First Amended Complaint, Plaintiff asserted that her discharge from employment on October 4, 2000, was "motivated by her pregnancy, impending maternity leave and familial status." (Am. Compl. at ¶ 53(a) and (b)). Defendant denied that Plaintiff's termination from employment was the result of pregnancy or gender discrimination. Defendant contended that her termination was based on poor performance and improper conduct. On November 19, 2002, the jury reached a verdict in favor of Defendant on the pregnancy discrimination claim.
Defendant contends that altercations between Plaintiff and an employee of one of its customers and between Plaintiff and a co-worker played a part in the decision to terminate her.
Presently before the Court is Plaintiff's Motion for Judgment Notwithstanding the Verdict Pursuant to FED. R. CIV. P. 50 and Alternative Motion For New Trial Pursuant to FED. R. CIV. P. 59. Plaintiff asserts three grounds for the relief she seeks. First, Plaintiff believes that the verdict was against the weight of the evidence presented at trial. Second, Plaintiff believes that she is entitled to a new trial because of erroneous evidentiary rulings. Specifically, Plaintiff argues that this Court allowed Defendant to introduce inadmissible hearsay evidence. In addition. Plaintiff asserts that this Court erroneously precluded Plaintiff from offering evidence of improper pregnancy related statements and pretext. Third, Plaintiff believes that the jury instructions given by the Court were erroneous.
1. The Verdict Was Against the Weight of The Evidence
Plaintiff seeks a judgment notwithstanding the verdict or a new trial contending that the verdict was against the great weight of the evidence. Plaintiff believes that the evidence she presented was more credible and should have been accepted by the jury. Since the jury returned a verdict for Defendant, Plaintiff concludes that the jury "chose to ignore these facts." (Pl's Br. at 11, see also Pl's Br. at 8). However, Defendant offered testimony in support of its claim that Plaintiff's poor performance warranted her selection as the individual to be laid off. Defendant also offered testimony with respect to altercations between Plaintiff and a co-worker and an employee of one of Defendant's customers. This evidence, if believed by the jury, would warrant a verdict in favor of Defendant. The jury was instructed that it was their function to weigh the evidence and to evaluate the credibility of witnesses. Clearly, the jury determined that Plaintiff had not proven her case by a preponderance of the evidence. Because the Court is satisfied that the verdict was not against the great weight of the evidence, the Court denies Plaintiff's claim for relief on this basis.
2. Erroneous Evidentiary Rulings
a. The Court Allowed Defendant to Introduce Inadmissible Hearsay Evidence
Plaintiff contends that the Court's decision to permit Jon Trigg to testify about statements allegedly made about Plaintiff's performance by three of Defendants' regional vice-presidents (Eric Tate, Joe Santoro, and Pat Romzek) was erroneous because Plaintiff believes these statements are inadmissible hearsay. (Pl.'s Mot. at 2, ¶ 3).
Plaintiff acknowledges that, due to financial losses, Defendant engaged in a reduction in force in late August or early September, 2000, and that one person from Jon Trigg's ten person staff would be terminated. (Jt. Pretrial Order at 8). Trigg testified that he selected Plaintiff as the person to be terminated because in his judgment, she was the poorest performer. The statements made by Tate, Santoro and Romzek were statements about Plaintiff's performance that were either made to Trigg or were reported to Trigg. These statements were not offered, or received by the Court, for the truth of the matter asserted in such statements; rather, they were offered for their effect on the listener, Jon Trigg. Therefore, such statements are not hearsay. See FED. R. EVID. 801(c). ( See also United States v. Pico, 784 F.2d 798, 804, n. 3 (7th Cir. 1986)("Certain statements, which evidence the effect of the statements on the mind of the listener, therefore, are not hearsay. `Statements may . . . be admitted to show . . . states of mind such as knowledge, motive, fear, or reasonableness in taking particular action.'") (citation omitted).
b. The Court Precluded Plaintiff From Offering Evidence of Improper Pregnancy Related Statements
Plaintiff attempted to offer statements allegedly made by Greg Zanette, her former manager, during her first pregnancy in 1999. These statements included remarks that "Plaintiff should be a stay-at-home mom" and "mean things" about how Plaintiff looked pregnant. (Pl.'s Br. at 14).
In her motion, Plaintiff contends that Zanette's comments are "evidence of pregnancy harassment and/or discrimination." (Pl.'s Br. at 14). In support of this claim, Plaintiff cites Koester v. City of Novi, 458 Mich. 1 (1998). However, Plaintiff misstates the holding of Koester. The Michigan Supreme Court did not hold, as Plaintiff suggests, that "[d]espite the lack of a hostile work environment claim, the Court still held that comments and conduct made by the plaintiff's supervisors was [sic] properly considered by the jury when it determined her sexual harassment claim." (Pl.'s Br. at 14).
In Koester, the Michigan Court of Appeals reversed and vacated a jury's verdict on plaintiff's sexual harassment claim because it concluded that offensive remarks about pregnancy are not of a "sexual nature" and therefore, plaintiff's hostile work environment sexual harassment claim was not actionable under Michigan's Civil Rights Act. Koester v. City of Novi, 213 Mich. App. 653 (Mich.Ct.App. 1995), rev'd in part, 458 Mich. 1 (1998). The Michigan Supreme Court disagreed with the court of appeals' conclusion that remarks about a woman's pregnancy are not of a "sexual nature." Koester, 458 Mich. at 10. It held that "sexual discrimination includes harassment on the basis of a woman's pregnancy." Id. at 16. As such, the court found that plaintiff's hostile work environment sexual harassment claim was actionable under Michigan's Civil Rights Act and reinstated the jury's verdict for plaintiff on the sexual harassment claim. Id. at 18.
Under Michigan law, sexual harassment falls into one of two categories: quid pro quo harassment or hostile environment harassment. Chambers v. Trettco, Inc., 463 Mich. 297, 310 (2000). See also, M.C.L. § 37.2103(i)( i)-( iii). One element of a hostile work environment sexual harassment claim includes a showing that "the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with the employee's employment or created an intimidating, hostile, or offensive work environment." Id. at 311. On August 27, 2002, this Court filed an Opinion granting Defendant's motion for summary judgment on Plaintiff's hostile work environment claim.
The Court agrees that Plaintiff's hostile work environment claim fails because viewing the totality of the circumstances testified to by Plaintiff, the conduct she complains of is insufficient to create a hostile work environment. That is, a reasonable person would not have perceived the above isolated comments, made during a time period of over one year, as substantially interfering with Plaintiff's employment or having the purpose or effect of creating an intimidating, hostile or offensive employment environment.
( See Opinion 8/27/02 at 18). At trial, Zanette's remarks as evidence of sexual harassment were irrelevant as this Court had already ruled that Plaintiff's sexual harassment claim was not viable.
Plaintiff also believes that Zanette's remarks demonstrate that her termination was motivated by pregnancy discrimination. ( See Pl.'s Br. at 7, "[Plaintiff] presented direct evidence that her termination by Defendant was motivated by pregnancy discrimination, where she attempted to offer evidence of Zanette's bias during her first pregnancy in 1999 as shown through various pregnancy related comments. But such comments were quashed through Defendant's motion in limine at trial.")
It is undisputed that Zanette left his employment with Defendant in April 2000, approximately six months before Trigg made the lay off decision pursuant to the reduction in force program. There is no evidence that Zanette played any part in the decision to select Plaintiff for lay off and therefore, these statements allegedly attributed to Zanette which may indicate a bias against pregnant women were not relevant to any issue that this jury had to decide. See Smith v. Leggett Wire Co., 220 F.3d 752, 759 (6th Cir. 2000)("`[S]tatements by nondecisionmakers . . . [can not] suffice to satisfy the plaintiff's burden . . .' of demonstrating animus.") (Quoting Bush v. Dictaphone Corp., 161 F.3d 363, 369 (6th Cir. 1998)). See also Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir. 1996)("To be probative, allegedly discriminatory statements must be made by the relevant decision maker.")
c. The Court Precluded Plaintiff From Presenting Evidence of Pretext
Plaintiff was terminated on or about October 4, 2000. Plaintiff contends that, "[o]n January 17, 2001, Defendant advertised an opening for Plaintiff's former position, Clinical Marketing Representative on its web site." (Jt. Pretrial Order at 11). Further, Plaintiff states that she applied for the position, but Defendant did not interview or contact Plaintiff. Plaintiff alleges that Defendant selected a male employee, Thomas Lancaster, with no prior sales experience. (Jt. Pretrial Order at 11). Plaintiff sought to introduce this evidence to support her claim that the decision to terminate her on October 4, 2000, was pretext.
In addition to the fact that Plaintiff had not asserted any claim in her First Amended Complaint that Defendant's decision not to rehire her in February, 2001 constituted discriminator conduct, this Court declined to admit evidence of the selection of Lancaster because the interjection of this issue in the trial would be potentially confusing to the jury and would involve a "mini-trial" within the trial. Considerable testimony on both sides would have been involved in attempting to resolve the issue of whether or not the selection of Lancaster and the failure of Defendant to rehire Plaintiff had anything to do with Plaintiff's gender or pregnancy. The potential confusion existed because, in this Court's opinion, it is possible that the jury could conclude that her termination in October of 2000, had nothing to do with gender or pregnancy, but that the decision not to hire her in February 2001 was based on gender or pregnancy. In addition, if after this "mini-trial," the jury believed that the failure to rehire Plaintiff in 2001 was discriminatory, they might be inclined to factor that into their total award, even though inclusion of damages for the Defendant's failure to rehire would be improper because such a claim was never asserted by Plaintiff.
Finally, evidence of failure to rehire is not relevant to the issue of pretext because there was no evidence or offer of proof by Plaintiff that Jon Trigg, the individual responsible for terminating Plaintiff in October, 2000, was involved in the decision not to accept Plaintiff's application for rehire in February 2001. As such, the hiring of Lancaster is not relevant to the issue of whether Trigg's legitimate reasons for laying off Plaintiff were pretext for discrimination.
3. The Jury Instructions Given By the Court Were Erroneous
In her motion, Plaintiff assigns four errors with regard to the jury instructions given in this case. First, Plaintiff contends that the Court erred by giving the jury a McDonnell Douglas burden shifting analysis instruction along with the Michigan Standard Jury Instruction SJI 2d 105.04 [Pl.'s Br. at 17, Ex. 1 2]. Plaintiff contends that "the jury was given two standards" and that "having both jury instructions to consider created the potential for a dual burden of proof and confusion for the jury." (Pl.'s Br. at 17.) This Court does not find any inconsistency between SJI 2d-105.04 and the instruction explaining the McDonnell Douglas framework. ( See Pl's Br. Exh. 1 2). As such, Plaintiff's claim that the two instructions potentially confused the jury is without merit.
Michigan courts have adopted the McDonnell Douglas framework for analyzing claims under Michigan's Civil Rights Act. Lytle v. Malady, 458 Mich. 153, 173 (1998).
Second, Plaintiff contends that the Court erred when it failed to instruct the jury that it could infer discrimination based on Defendant's failure to follow its own reduction in force guidelines. Specifically, Plaintiff claims it was error for the Court to refuse to give Plaintiff's Special Jury Instruction No. 1 entitled, "Evidence of Defendant's Violation of Defendant's Policies." (Pl.'s Br. Exh. 3). The Court does not believe that based on Defendant's failure to follow the reduction in force policies, the jury could infer discrimination. Plaintiff was permitted to, and did in fact, argue that Defendant's failure to follow such policies supported Plaintiff's claim that her termination was based on pregnancy. However, in this Court's opinion, it would have been error to instruct the jury that if they found it to be true that Defendant failed to follow its policy with respect to the reduction in force-program, that they could infer Plaintiff was terminated because of unlawful discrimination.
Plaintiff's reliance on McLemore v. Detroit Receiving Hosp. and Univ. Med. Ctr., 196 Mich. App. 391 (1992) is misplaced. The Court in McLemore did not hold that because a defendant did not follow its policies, the jury could infer discrimination. The Court did hold that based on all the circumstantial evidence in that case, which included evidence that defendant did not follow a policy to offer laid-off employees other positions, a jury could infer that plaintiff was laid off in retaliation for filing a complaint with the EEOC. Id. at 396-398.
Third, Plaintiff contends that the Court erred in failing to give the jury Plaintiff's Special Jury Instruction No. 2. (Pl's Br. Exh. 4). However, the jury instruction which Plaintiff claims was given in error ( See Pl.'s Br. Exh. 1) includes language nearly identical, with respect to pretext, as the language contained in Special Jury Instruction No. 2.
Finally, Plaintiff contends that the jury form incorrectly stated Plaintiff's burden of proof under SJI 2d-105.04. Question 1 on the Verdict Form (Pl.'s Br., Exh. 6) asked:
Has the Plaintiff proven by a preponderance of the evidence that pregnancy was one of the motives for selecting Plaintiff for the reduction in force.
In this Court's opinion, that was an appropriate question for the jury to answer. To this question, the jury answered. "No." A finding by the jury that pregnancy was not one of the motives for selecting Plaintiff for the reduction in force entitled Defendant to a Judgment of No Cause for Action. The Court finds no error with respect to the jury verdict form.
Prior to the commencement of closing arguments, the Court inquired of counsels' objections to the proposed instructions. The Court advised both counsel that it was going to submit as the verdict form, a modified version of Defendant's proposed verdict form. The only statement Plaintiff's counsel made expressing any disagreement with respect to the proposed verdict form was that counsel was not in agreement with the Defendant's verdict form. However, the only specific objection Plaintiff's counsel made to the verdict form related to question No. 3.
For the reasons set forth above, Plaintiff's Motion for Judgment Notwithstanding the Verdict and Alternative Motion for New Trial shall be denied.
An Order consistent with this Opinion shall issue.