DAVID C GOLLMAN V CITY OF DETROIT
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STATE OF MICHIGAN
COURT OF APPEALS
DAVID C. GOLLMAN,
UNPUBLISHED
February 24, 2011
Plaintiff-Appellant,
v
No. 293744
Wayne Circuit Court
LC No. 08-014218-CL
CITY OF DETROIT,
Defendant-Appellee.
Before: MURPHY, C.J., and METER and SHAPIRO, JJ.
METER, J. (dissenting).
Because I believe that the trial court ruled properly given the facts presented to it, I
respectfully dissent. I would affirm the grant of summary disposition to defendant.
This appeal concerns the amount of back pay to which plaintiff is entitled. The trial court
determined that plaintiff was not entitled to any back pay because he made more money from his
interim employment than he would have made had he been continuously employed with
defendant. In making its ruling, the trial court relied, in part, on Egan v Detroit, 150 Mich App
14; 387 NW2d 861 (1986). Plaintiff contends that Egan was wrongly decided and should not be
followed.
MCL 35.402, a provision of the veteran’s preference act (VPA), MCL 35.401 et seq.,
provides that a veteran who has been improperly discharged and later reinstated “shall be entitled
to receive compensation for the time lost from [the] date of such dismissal or suspension to the
date of reinstatement at the same rate of pay received by him at the date of dismissal or
suspension.” In Egan, 150 Mich App at 26, the plaintiff earned money through consulting work
while he was not working with the defendant because of a wrongful dismissal. The plaintiff,
relying on Cremer v Alger County Road Comm'rs, 325 Mich 27; 37 NW2d 699 (1949), argued
that his award under the VPA should not have been reduced by the amount he earned in his
consulting work. Egan, 150 Mich App at 26. In Cremer, 325 Mich at 34, the Supreme Court
stated the following:
There is no merit to defendant’s further contention: “If plaintiff was
wrongfully discharged, his recovery should be reduced by the amount he could
earn at general labor for the defendant.” The reason defendant urges in support of
this contention is that it was plaintiff’s “duty to mitigate the damages by taking
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other employment.” The answer is that the statute, which is class legislation
favoring honorably discharged veterans, in part reads:
“And provided further, That where such veteran has been reinstated to his
employment upon the written order of the . . . prosecuting attorney if a county
employee, . . . then such veteran shall be entitled to receive compensation for the
time lost from date of such dismissal or suspension to the date of reinstatement at
the same rate of pay received by him at the date of dismissal or suspension.”
While it fairly appears that plaintiff declined to return to defendant’s
employ as a common laborer, he testified he sought employment elsewhere and
stated to one to whom he was applying: “I would try anything.”
In our judgment this appeal presents no ground or reason that would
justify reversal.
In Egan, 150 Mich App at 27-28, the Court held:
Even assuming that, pursuant to Cremer, a plaintiff’s failure to mitigate
his damages by obtaining like employment cannot be relied upon to reduce his
award under the veteran’s preference act, we believe this proposition does not
prevent a reduction of the monetary award where plaintiff has in fact had earnings
during the period of dismissal. If we were to accept plaintiff’s argument, a
veteran who has obtained interim employment at a higher wage during the entire
dismissal period would nonetheless be entitled to full back pay for the period. We
cannot believe the Legislature intended to bestow such a windfall since damages
are generally designed to compensate for harm done. In the scenario suggested
above, the improperly dismissed veteran has suffered no harm, at least financially,
and thus, while entitled to reinstatement to his former position, he should not
receive an award for back pay. Therefore, we conclude that the trial court
properly reduced plaintiff’s award by the amount of income earned by plaintiff
during the period of his dismissal from city employment.
Plaintiff contends that Egan was improperly decided in light of Cremer and that,
therefore, it should be abrogated. We cannot agree that the Egan Court improperly interpreted
Cremer. The holding in Cremer was less than clear. The Cremer Court did not set forth a
bright-line rule indicating that an award of back pay under the VPA should never be set off by
money earned during interim employment. Instead, the Cremer Court indicated that the plaintiff
in that case was not obligated to take a less appealing job with the defendant, and the Court
appeared to emphasize that the plaintiff had been unsuccessful in finding different interim
employment.
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Cremer simply does not mandate a reversal of Egan, which remains good law under the
doctrine of stare decisis. The trial court properly concluded that Egan required an offset for the
money earned by plaintiff during his interim employment.
Plaintiff argues that the trial court improperly ruled on plaintiff’s “preliminary issues”
regarding the computation of damages.1 Plaintiff argues that the court failed to consider that a
1
The trial court ruled as follows regarding defendant’s motion for summary disposition:
Mr. Gollman was an assistant line supervisor, so it was the [c]ourt’s
feeling that any other person working in that position or [a] similar position, that
overtime pattern should be used to determine what overtime would be available to
Mr. Gollman.
Also insofar as the other benefits that Mr. Gollman was entitled to, bank
time, time that would be put into his bank, that was figured in. The report
instructed that that be done. And we have figures that have been submitted, what
Mr. Gollman would have made compared to what he did, in fact, make while he
was away.
And in order to determine what amounts he would have made, that he did
actually make, Internal Revenue transcripts were used for the years 2003 to 2007.
For the year 2008 a W-2 was used. And once the computations were made, it
turns out that Mr. Gollman made $211,474 more than he would have made if he
had stayed on the job here as an assistant line supervisor.
Mr. Gollman when the case was first presented to the [c]ourt indicated that
and I was under the impression that he was entitled to receive a great deal of
money for being off of the job, and after some discussion with the attorneys the
[c]ourt decided that he would be given an advance of $30,000 against the amount
that he would be paid once the computations were done. As it turns out, Mr.
Gollman was not entitled to that $30,000 because he made far more than he would
have made if he had stayed on the job. Even taking into consideration the cashing
out of his annuity or pension plan, which was set at the amount of 125,000 or so
and taking out the amount that is attributable to gambling winnings, he still would
come out $52,000 more than what he would have made.
So that considering all of the materials that have been submitted, there are
no genuine issues of fact, no genuine issues of material fact that have to -- have
been decided. The Court has considered the legitimate documents from the
Internal Revenue, the W-2s and the other information that has been submitted.
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large part of his purportedly earned interim income for 2003 – $164,663 – was the result of a
liquidated pension and that $8,040 represented gambling winnings for that year and not earned
income. Plaintiff further states:
Similarly, in 2004 [p]laintiff reported gambling winnings of $32,140.00;
in 2006 he reported non-wage income of $2,000.00; and in 2007 he reported
$1,448.00 as income from unemployment compensation and an additional
$1,200.00 in non-wage income.
As a consequence of all of the above, over the entire period of his
discharge, [p]laintiff received non-wage income totaling $209,491.00, all of
which the city misrepresented to be income from interim employment.
In his responsive brief in the trial court, plaintiff stated only that an amount “in excess of
$125,000.00” was attributable to the liquidation of his pension and that “[a]pproximately
$34,000 of income reported by [p]laintiff to the IRS came as a result of gambling winnings . . . .”
Plaintiff did not calculate the $209,491 that he cites on appeal. He made the further calculations
only in a motion for reconsideration, after the trial court had made its summary-disposition
ruling. Accordingly, plaintiff did not present his argument properly in the trial court. See, e.g.,
Charbeneau v Wayne Co Gen Hosp, 158 Mich App 730, 733; 405 NW2d 151 (1987) (“The grant
or denial of a motion for reconsideration rests within the discretion of the trial court. . . . We find
no abuse of discretion in denying a motion resting on a legal theory and facts which could have
been pled or argued prior to the trial court's original order.”).
As noted by the trial court, the documents submitted demonstrated that plaintiff made
$211,474 more during the time away from city employment than he would have made while on
his standard job. Accordingly, even subtracting $159,000 ($125,000 + $34,000) would not
The [p]laintiff raises a number of issues regarding how the computation
should be made and what other expenses should have, should be considered,
really questioning the figures from the Internal Revenue, from the W-2s and the
other documents that, that should, that have been used here.
And I just caution that MCR 2.116(G)(4) says that with a Motion for
Summary Disposition under (C)(10) it’s not enough for the opponent to come in
and deny or question, but there is required affidavits and other documentation to
specifically point out facts that would defeat the motion, and that has not been
done here.
Motion for Summary Disposition is granted. The $30,000 advanced to
Mr. Gollman is to be paid within 30 days from this date.
I reject plaintiff’s assertion that the trial court failed to adequately rule on various issues. The
court, either explicitly or implicitly, did rule on the material issues.
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entitle plaintiff to relief; nor, for that matter, would subtracting $209,491 entitle plaintiff to relief.
Moreover, plaintiff provided no documentary support below, and did not point to a portion of the
record, for his assertion that $125,000 represented the liquidation of a pension; he merely made
this bald assertion in his responsive brief. The assertion about “gambling income” was arguably
supported, at least in some fashion, by a 2004 tax return showing an amount of $32,140
attributable to gambling. However, plaintiff has not adequately demonstrated that gambling
winnings should not be considered “income earned by plaintiff” as stated in Egan, 150 Mich App
at 28.
Plaintiff argues that the money he earned by way of his interim employment was earned
in locations away from his home and that he incurred considerable expenses to participate in the
jobs. He contends that defendant’s set-off amount should in turn be set off by these expenses.
However, plaintiff provided no documentation in support of these expenses before the ruling on
the summary-disposition motion; he merely mentioned their existence in his responsive brief and
provided partial documentation by way of his motion for reconsideration. Accordingly, I find
that the trial court did not err in failing to take them into consideration. Innovative Adult Foster
Care, 285 Mich App at 475; Charbeneau, 158 Mich App at 733.
Plaintiff also argues that the trial court should not have compared the cumulative total of
interim earnings to the cumulative total of the amount plaintiff would have earned in city
employment. He contends that defendant “should only receive a set-off for wages it would have
paid to [p]laintiff for the corresponding period during which [p]laintiff actually earned income
from interim employment.” He states that he worked sporadically during the interim period.
However, plaintiff provides no authority for his legal argument. The Egan Court stated that “the
trial court properly reduced plaintiff’s award by the amount of income earned by plaintiff during
the period of his dismissal from city employment.” Egan, 150 Mich App at 28. It mentioned the
“period of dismissal,” and did not indicate that smaller discrete periods should be examined. I
find no error requiring reversal.
Plaintiff contends that his missed overtime pay was improperly calculated because it was
based on a comparison with another assistant line supervisor, Jim Nomura. Plaintiff contends on
appeal, as he did below, that the comparable used should have been Dennis Stokes, who was in a
job one step above plaintiff and Nomura but who, according to plaintiff, had “overtime habits”
that most closely mirrored his own. (Employees could work more or less overtime, according to
preference.) At a hearing on April 9, 2009, plaintiff argued that Stokes would be the proper
person to use as an overtime comparable. The trial court stated, “Mr. Nomura and Mr. Gollman
are in the same position, so if we’re going to make comparisons we should use that.”
In an affidavit attached to his brief in response to defendant’s summary-disposition
motion, plaintiff argued that Stokes’s overtime habits more closely mirrored his own as
compared to Nomura’s, but this affidavit was unsigned.2 Only when attached to the motion for
2
The majority assumes, based on comments in the record, that this affidavit was properly
submitted and signed at an earlier date. I refuse to make this unsupported assumption.
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reconsideration was it signed. Given the unsigned affidavit and the fact that Nomura was in the
same position as plaintiff, I find no error in the trial court’s relying on Nomura as a comparable.
Plaintiff argues that the trial court failed to resolve certain other “preliminary issues.”
However, plaintiff’s briefing of this argument is so sparse that I deem the argument abandoned.
See Goolsby v Detroit, 419 Mich 651, 655 n 1; 358 NW2d 856 (1984).
Plaintiff lastly contends that the trial court should not have granted summary disposition
to defendant because defendant’s motion was not supported by proper documentation.
Specifically, plaintiff takes issue with defendant’s self-created charts showing “the compensation
which would have been paid to [p]laintiff, had he not been discharged, and graphs which purport
to compare the [p]laintiff’s overtime practices with Jim Nom[u]ra.” However, defendant
submitted to the court actual payroll records in support of its figures and projections at another
point in the proceedings. I conclude that defendant submitted adequate evidence in support of its
motion for summary disposition, and plaintiff did not adequately counter the evidence.
I emphasize these precepts from Innovative Adult Foster Care, Inc v Ragin, 285 Mich
App 466, 475; 776 NW2d 398 (2009):
A motion for summary disposition brought pursuant to MCR 2.116(C)(10)
tests the factual support for a claim. The moving party must first specifically
identify the issues as to which [it] believes there is no genuine issue as to any
material fact, and has the initial burden of supporting its position with affidavits,
depositions, admissions, or other admissible documentary evidence[.] Once this
initial burden has been met, the burden shifts to the nonmoving party to establish
the existence of a genuine issue of material fact for trial. Where the burden of
proof at trial on a dispositive issue rests on a nonmoving party, the nonmoving
party may not rely on mere allegations or denials in [the] pleadings, but must go
beyond the pleadings to set forth specific facts showing that a genuine issue of
material fact exists. [Internal citations and quotation marks omitted; emphasis
added.]
Defendant met its “initial burden of supporting its position,” and plaintiff failed to demonstrate
properly that a genuine issue of material fact existed. He had ample opportunity to provide facts
to counter defendant’s motion but did not adequately do so. I would decline to give plaintiff a
second opportunity.
I would affirm the grant of summary disposition to defendant.
/s/ Patrick M. Meter
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