WILLIAM S JOHNSON V GENERAL MOTORS CORPORATION
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STATE OF MICHIGAN
COURT OF APPEALS
WILLIAM JOHNSON,
UNPUBLISHED
Plaintiff-Appellant,
v
No. 190340
Wayne Circuit Court
LC No. 93-311720
GENERAL MOTORS CORP,
Defendant-Appellee.
Before: Taylor, P.J., and Griffin and White, JJ.
WHITE, J. (concurring in part and dissenting in part).
I concur in the dismissal of plaintiff’s age discrimination claim. Plaintiff did not refute that
defendant reorganized and down-sized its operations in 1991 and 1992.1 Plaintiff therefore had the
burden of presenting evidence that age was a determining factor in defendant’s adverse employment
actions, Matras v Amoco Oil Co, 424 Mich 675, 682-683; 385 NW2d 586 (1986); SJI2d 105.02,
which plaintiff failed to do.2 I also agree that the continuing violations doctrine is inapplicable because
plaintiff failed to show that he would not have known to bring an action based on the stale events,3 as
required by Sumner v Goodyear Tire Rubber & Co, 427 Mich 505, 538; 398 NW2d 368 (1986).4 I
further agree that plaintiff presented insufficient evidence to survive defendant’s motion as to any failure
to promote claim5 and racial harassment claim,6 but conclude that plaintiff’s racial discrimination and
retaliation claims should not have been dismissed.
I cannot agree that plaintiff failed to identify any act of racial discrimination occurring within the
three-year limitations period The facts viewed in a light most favorable to plaintiff are that plaintiff began
employment with GM in 1965 as an hourly worker at a plant in Flint. He soon after became a salaried
employee and was the first African-American district manager at GM in the 1970s. Plaintiff continued
to work as a manager for almost ten years, until 1977, when he left to purchase a GM auto dealership.
In 1985, plaintiff returned to GM, as an auction coordinator in charge of auction car sales to GM
dealers nationwide. Plaintiff’s 1986 evaluation stated that he possessed “excellent oral and
communication skills.” Both his 1986 and 1987 performance evaluations rated him as “should be
considered now” for promotion, and his overall performance as “superior,” the next to the highest
category. Thereafter, plaintiff was not evaluated annually. An informal evaluation occurred in late 1990,
after he formally complained about not being promoted based on his race. Defendant told plaintiff that
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his “communication, managerial and organizational skills were lacking and that he would not be
promoted.” Defendant argued below that it then had an “independent skills assessment” of plaintiff
done by an outside firm, whose testing results “coincided with GM management’s determination that
plaintiff’s communication skills were sorely lacking.”
When viewed in a light most favorable to plaintiff, there is a factual question whether
defendant’s actions were discriminatory and its stated reasons pretextual. While defendant initially
identified communication, managerial and organizational skills, it appears from the assessment that
plaintiff’s managerial and organizational skills were strong. Further, while the 1990 assessment did
identify a communications deficiency, the assessment was, overall, quite complimentary to plaintiff and
rated plaintiff well. It did not state or imply that plaintiff should not be considered for promotion7 or be
stripped of his duties, as plaintiff was in 1991, or be demoted as he was in 1992.8
Plaintiff presented evidence that a number of other discriminatory and retaliatory incidents
occurred within the limitations period. For example, plaintiff’s response to defendant’s motion argued,
and excerpts of plaintiff’s deposition testimony attached to his response support, that although plaintiff
was responsible for handling any complaints about GM dealers nationwide and imposing discipline on
the dealers, defendant’s agents in 1991 suspended the lone African-American GM dealer in Alabama,
without plaintiff’s knowledge. Although complaints regarding dealers were to be channeled through
plaintiff, in this instance, plaintiff was bypassed by neither being informed of the matter nor receiving
copies of pertinent correspondence. Plaintiff testified that he complained about the allegedly racially
discriminatory handling of the Alabama dealer to his superior, Mike McHale, around April or May
1991, and approximately one w later his responsibilities as auction dealer relations manager were
eek
removed and given to a white male, Gordon Warren. Leon McDaniel, to whom plaintiff apparently
later reported, testified that plaintiff was then assigned no job responsibilities and that he had “no
knowledge” of other employees being similarly assigned no job duties. Plaintiff testified that he
attempted two or three times, unsuccessfully, to discuss that he had no job responsibilities with Dale
Hermiller, who took over the department in which plaintiff was located in late 1991.
Plaintiff raised a genuine issue of fact whether his being stripped of his duties in 1991 was in
retaliation for his complaining about what he perceived to be defendant’s discriminatory conduct against
Bell, the African-American GM dealer in Alabama. Plaintiff’s retaliation claim was improperly
dismissed because plaintiff presented evidence of a causal link between protected activity and adverse
treatment by defendant. See Kocenda v Detroit Edison Co, 139 Mich App 721, 725; 363 NW2d 20
(1984).
Plaintiff additionally asserted that his demotion in August 1992 was discriminatory and that
defendant’s reason for demoting him, improprieties surrounding the GM Proud Program, was a mere
pretext for further discriminating and retaliating against him. Plaintiff also argued, however, that the
operative demotion occurred in 1991 when he was stripped of his duties.
On June 15, 1992 plaintiff’s counsel requested plaintiff’s personnel file pursuant to the
Employee Right to Know Act, MCL 423.501 et seq.; MSA 17.62(1) et seq. Plaintiff’s counsel sent a
second letter making the same request on June 24, 1992. Although plaintiff had signed an authorization
form for release of his file, defendant required plaintiff to sign another form on July 7, 1992. One week
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later, on July 15, 1992, plaintiff was confronted by Amy LaBarge, defendant’s Personnel Manager, and
told he would be demoted because of improprieties regarding the GM Proud program, a sales incentive
program. Plaintiff attached a memo from LaBarge and F.N. Sims to him which referred to their meeting
of July 15, 1992, and stated that at that time plaintiff had been “advised that your job responsibilities
would be changed and your pay and level would be adjusted downward.”
Amy LaBarge’s affidavit, which defendant heavily relied on below, stated that “[i]n or around
August 1992,” an investigation by the GM Internal Audit Staff revealed that plaintiff had improperly
taken credit for sales through the GM Proud Program. However, the record indicates that part of the
investigation was conducted on June 22, 1992, shortly after plaintiff’s counsel requested plaintiff’s
personnel file, and part in August 1992.
Defendant argued below that two white employees were disciplined for similar conduct
involving the GM Proud Program, Dale Hermiller and Denise Kozakiewicz. Defendant attached to its
brief below a personnel transaction form stating that in September 1992 Kozakiewicz was demoted and
her pay decreased “based on improprieties and investigation of activities related to the GM Proud Sales
Program.” Plaintiff did not address this evidence or rebut it, either below or on appeal. Regarding
Hermiller, however, plaintiff attached deposition testimony of Hermiller’s to his response to defendant’s
motion in which Hermiller testified that he was not disciplined as a result of anything having to do with
the Proud program; that he, like plaintiff, had distributed cards to dealers without names of customers
filled in; and that he had received credit for the sales.
Hermiller’s deposition testimony contradicted defendant’s argument that Hermiller was
disciplined because of his activities in the Proud program. Hermiller testified that he voluntarily left GM
in June 1992 because he had an opportunity to obtain a better position with a different company in
Maryland, that he and GM had a “mutual parting of the ways.” Moreover, several GM employees, in
addition to plaintiff, testified at deposition that they had not seen any rules or documentation regarding
the Proud program. 9
A plaintiff can establish that the employer’s stated legitimate reason is pretextual by showing 1)
that the reasons had no basis in fact; 2) that, if there was a factual basis for the employer’s reasons, the
reasons were not the actual factors motivating the employment decision; or 3) that, if the reasons were
factors, they were insufficient to justify the decision. Dubey v Stroh Brewery Co, 185 Mich App 561,
565-566; 462 NW2d 758 (1990).
Plaintiff’s failure to rebut the evidence that Kozakiewicz was disciplined for similar conduct is
not fatal to his demotion claim because viewing the facts in a light most favorable to plaintiff, a jury could
conclude that the operative “demotion” occurred in 1991, when he was stripped of his duties as auction
coordinator, and that the August 1992 “demotion” did not change the status quo, i.e., that plaintiff had
no job responsibilities. Further, plaintiff presented evidence from which a fact-finder could infer that the
alleged GM Proud Program improprieties were not the true reason plaintiff was demoted. A reasonable
juror could conclude that the demotion was in retaliation for plaintiff’s counsel’s request for plaintiff’s
personnel file, or could conclude that the demotion was intended to force plaintiff to leave GM, in
further retaliation for his complaints of discrimination.
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Plaintiff also testified, and submitted an affidavit in support of his response to defendant’s
motion, that, following his 1992 demotion, everyone in his department had left the World Headquarters
building, so he was left alone there.10 He was then transferred to the North American Automobile
Organizations Fleet Operations at the Tech Center in Warren, and given an office without a telephone
or secretary.
Plaintiff was discharged in March of 1994 by LaBarge, allegedly because of a phone
conversation plaintiff had had with Bell, the African-American GM dealer in Alabama, in May 1993, at
a time when Bell had a suit pending against GM. Both plaintiff and Bell were in their respective homes
at the time of the phone conversation and, unknown to plaintiff, Bell was recording the conversation on
advice of counsel. GM procured a copy of the taped phone conversation sometime in 1994, well after
having twice demoted plaintiff, during discovery in Bell’s case against GM. During the May 1993
phone conversation both men discussed their disillusionment with defendant’s treatment of AfricanAmericans. Defendant argued below that it discharged plaintiff because in the phone conversation he
“misrepresented the business practices and policies of GM and GMAC . . . and made false and
disparaging remarks regarding GM executives involved with the auction operations, as well as McDaniel
and Powell, which served to undermine the integrity, effectiveness and reputation of the Corporation
and the GM Minority Dealer Development Program.” Defendant argued below that “GM’s Guidelines
for Employee Conduct specifically prohibit the type of duplicitous ex-parte communication in which
plaintiff engaged,” and that plaintiff made disparaging references to the two top ranking in GM’s
Minority Dealer Development Program, which served only to undermine their ability to implement the
policies which GM had established to assist its minority dealer operators. The guideline GM relies on,
however, states that employees should not respond to requests from “lawyers for private parties
concerning litigation or an investigation.”
The guideline does not apply on its face. Plaintiff presented sufficient evidence to present a jury
submissible issue regarding whether this was a true reason for plaintiff’s discharge or a pretext for
terminating plaintiff. Dubey, supra at 565-566; 462 NW2d 758 (1990). A reasonable fact-finder
could conclude that defendant had set about to terminate defendant well before obtaining the taped
phone conversation, as a result of racial discrimination or retaliation, as evidenced by plaintiff’s being
stripped of his duties and later being officially demoted, and that defendant’s reliance on the
conversation, which did not violate the policy on its face, was a pretext.
I would reverse the grant of summary disposition as to plaintiff’s racial discrimination and
retaliation claims.
/s/ Helene N. White
1
Plaintiff erroneously argues on appeal that defendant did not argue below that it had reorganized and
reduced its work force. Defendant’s brief in support of it’s motion for summary disposition did argue
that defendant implemented a reorganization and downsized.
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2
It appears that the circuit court improperly believed that an age discrimination claim may not be
maintained in situations where a plaintiff’s job responsibilities, after discharge or demotion, are not taken
on by another. When an employer lays off employees or reorganizes for economic reasons, the plaintiff
bears a greater burden of proof in showing discrimination and must present evidence that age was a
determining factor in the employer’s decision to discharge him. Plieth v St Raymond Church, 210
Mich App 568, 574; 534 NW2d 164 (1995). Even though an employer may be able to justify
economic layoffs, it cannot decide which employees to lay off based on considerations that are
prohibited by law, such as age, race or sex. Featherly v Teledyne Industries, 194 Mich App 352,
355; 486 NW2d 361 (1992). Additionally, under the CRA a plaintiff need not establish that his or her
replacement was forty years of age or under; under the CRA the plaintiff must merely show that he or
she was replaced with a younger person. Matras, supra at 683. The circuit court erroneously applied
the standards of the Age Discrimination in Employment Act (ADEA), 29 USC 621 et seq., which
protects individuals forty years or older from age-based discrimination. Simpson v Ernst & Young,
100 F3d 436 (CA 6, 1996).
3
Plaintiff argued below that he complained a number of times about defendant’s discriminatory conduct,
as far back as 1986, and that plaintiff’s 1990 complaint was “merely one example of numerous
instances of formal and informal oppositions of Plaintiff to his racially discriminatory treatment.”
4
The majority discusses a number of incidents that occurred outside the three year limitations period.
Because I conclude that the continuing violations doctrine does not apply, I do not reach the question
whether those incidents were evidence of discrimination.
5
Defendant argued in its reply brief below that plaintiff voluntarily dismissed this claim in his second
amended complaint, because any promotion-related claim was barred on res judicata grounds,
apparently referring to a consent decree entered in Huguley v General Motors, 128 FRD 81 (ED MI,
1989), aff’d 925 F2d 1464 (CA 6, 1991). We need not address the applicability of Huguley,
however, because plaintiff has failed to present evidence 1) that he applied for specific positions, 2) of
who was promoted to the various positions about which he testified at deposition he was qualified for,
and 3) of his qualifications for those positions, as compared to the qualifications of those who received
the promotions. See Allen v Comprehensive Health Services, 222 Mich App 426; 564 NW2d 914
(1997)(involving a failure to promote claim, albeit in a reverse discrimination context.)
6
Plaintiff did not provide sufficient evidence that the alleged harassment was intended to or did
substantially interfere with his employment or created an intimidating, hostile or offensive work
environment to survive defendant’s motion. Radtke v Everett, 442 Mich 368, 382-383; 501 NW2d
155 (1993). Moreover, several of the alleged discriminatory remarks and incidents plaintiff relied on
occurred outside the three-year limitations period, and some occurred before plaintiff left GM in 1977
to become a GM car dealership owner. Plaintiff returned to GM in 1985.
7
As discussed in note 2, supra, plaintiff’s failure to promote claim still fails.
8
The independent assessment, dated August 16, 1990, stated that plaintiff’s areas of interest included
sales and business management, and financial management and administration. The assessment stated
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that the personality inventories “provide a profile of an individual who is patient and stable, and who
likes to be organized and scheduled,” “[h]e is a warm and helping individual and is also open and
trusting,” “[h]e has a constructive outlook and is interested in the development of people . . . he values
personal relationships and has a strong sense of self worth. . . likes to set and achieve goals.” The
assessment referred to plaintiff’s communication skills in sections entitled “Abilities” and “Career
Implications”:
Abilities
He has above average ability in abstract thinking. He approached problems logically.
He has strong interpersonal skills and relates to people with warmth and sincerity.
He generally communicates effectively, but he does make errors in basic grammar which
detract from his overall effectiveness. He sometimes chooses language which confuses
people rather than influences them. He would be more effective if he used less complex
language with which he is more comfortable instead of trying to ‘stretch’ his vocabulary.
This sometimes creates undo [sic] vagueness in his communications.
Career Implications
According to this assessment, Mr. Johnson would be a good fit for several career areas.
One area is his current position which involves administrative interests and abilities.
Another area would be the training area, where he shows strong interest patterns and
where he could apply his dealership experience. Positions where he coordinated dealer
training programs would appear appropriate for him.
A third area would be dealer relations. Here he could use his knowledge of dealerships
to help coordinate between General Motors and its dealers.
A fourth area for consideration for him would be to own and operate a small business in
an area which might interest him. He could be particularly effective in the sales aspects
of such business.
Regardless of which career area he pursues, he should work at improving his oral
communication in two ways. One, he should take a self-study course of some sort to
review basic grammar in order to eliminate the errors he makes. Although this may
seem like a minor issue, it affects his overall impact on others. Secondly, he could try to
keep his language more simple and straightforward and avoid complex phrases which
tend to confuse others and produce an appearance of vagueness. He should therefore
be able to get his message across more effectively and improve his communication with
others.
The assessment’s conclusion was stated in a final section:
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Summary
Mr. Johnson appears to be an individual with good experience who will work hard in a
situation where he feels he is utilizing his skills, and where he can get proper recognition
for his contributions. He expresses frustration in his current situation with his job duties,
his immediate supervisor, and his future opportunities. If these issues cannot be dealt
with more to the satisfaction of Mr. Johnson and the company, some of the other
options above should be explored with him.
9
Defendant attached to its appellate brief an undated copy of a brochure entitled “GM Employee Sales
Referral Program.” Defendant did not establish that the brochure was distributed to its employees,
however, or when it was distributed.
Defendant also relied on its “GM Guidelines for Employee Conduct,” which proscribe employees from
improperly using their positions in order to benefit themselves. I conclude that plaintiff presented
sufficient evidence to rebut defendant’s articulated reasons for its adverse actions such that the questions
whether plaintiff’s conduct violated this provision and, if so, whether such was a true reason for his
second demotion should be a jury question.
10
This evidence refutes defendant’s contention that “[p]laintiff, like other employees during this time
period, was left in a ‘transitional’ status and without a regular job to report to,” and that by remaining at
the World Headquarters building plaintiff’s “chances of being redeployed were enhanced.”
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