FOEHR
v.
REPUBLIC AUTOMOTIVE PARTS, INC
Docket No. 147787.
Michigan Court of Appeals.
Submitted March 23, 1995, at Detroit. Decided May 30, 1995. Approved for publication August 17, 1995, at 9:00 A.M.Stark & Gordon, P.C. (by Deborah L. Gordon) (Bendure & Thomas, by Mark R. Bendure, of Counsel), for the plaintiff.
Vandeveer Garzia, P.C. (by Robert D. Brignall, C.F. Boyle, Jr., and Hal O. Carroll), for the defendant.
Before: CONNOR, P.J., and WAHLS and HOEKSTRA, JJ.
PER CURIAM.
In this wrongful discharge action, the jury found for plaintiff. He was awarded past damages of $262,413 and future damages of $692,603. Defendant appeals as of right from the final judgment. Plaintiff has also filed a cross appeal. We affirm the jury's verdict, but reverse the trial *665 court's decision to grant defendant summary disposition of plaintiff's claim of age discrimination.
Defendant first claims error in the trial court's decision to deny its motion for judgment notwithstanding the verdict. We disagree. Plaintiff presented sufficient evidence, based upon a legitimate expectations theory, that he was subject to the policies expressed in defendant's employment policy manual and that the manual created an employment contract that was terminable for just cause only. There was evidence that the policy manual applied to all employees who received a wage or salary from defendant. Officers of the corporation were not excluded. Therefore, it was a jury question whether the policy manual applied to plaintiff and whether it created a legitimate expectation that the employer would discharge employees for just cause only. Rood v General Dynamics Corp, 444 Mich. 107, 117-118, 140-141; 507 NW2d 591 (1993); Rice v ISI Mfg, Inc, 207 Mich. App. 634, 636; 525 NW2d 533 (1994).
The policy manual also supported plaintiff's theory that, even if he was removed as an officer of the corporation, he had a legitimate expectation that he would be placed in another position in the company unless a position for which he was qualified was not available. It had been defendant's practice over the years when jobs were eliminated to permit displaced employees to accept new assignments within the corporation. Accordingly, even though his term as a corporate officer was subject to an annual vote by the board, his wrongful discharge action was adequately supported by the evidence and the trial court did not err in submitting his case to the jury. Rood, supra; Barnell v Taubman Co, Inc, 203 Mich. App. 110, 116; 512 NW2d 13 (1993), lv gtd 447 Mich. 990 (1994).
Furthermore, we do not agree with defendant *666 that plaintiff's employment involved nothing more than a satisfaction contract. Mitchell v General Motors Acceptance Corp, 176 Mich. App. 23, 32; 439 NW2d 261 (1989). When the language of defendant's policy manual is read in a light most favorable to plaintiff, he had a reasonable, legitimate expectation that he would not have his employment terminated except for just cause. What constituted just cause was not left to defendant to decide. Compare Thomas v John Deere Corp, 205 Mich. App. 91, 94-95; 517 NW2d 265 (1994).
Plaintiff was not required to produce evidence of mutual assent to have his case reach the jury. He premised his wrongful discharge action on a public policy theory rather than a contract theory. Rood, supra, pp 117-119; Barnell, supra, pp 116, 119.
The jury's verdict was not against the great weight of the evidence. Bosak v Hutchinson, 422 Mich. 712, 737; 375 NW2d 333 (1985). First, as we have previously discussed, the jury could have found that plaintiff was entitled to continued employment even if defendant's new chief executive officer wanted to bring in his own people to serve as officers. Second, the jury could have found that defendant's reasons for terminating plaintiff's employment were a pretext. The decision was apparently made with little or no regard for plaintiff's demonstrably excellent record, and plaintiff testified that he was told that his performance was not a reason for his termination.
The trial court did not err in denying the motion for a new trial with regard to future damages. Plaintiff presented evidence that he mitigated his damages, but was not able to either find a comparable permanent position or earn the same pay when working as an independent financial consultant. Renny v Port Huron Hosp, 427 Mich. 415, 438-439; 398 NW2d 327 (1986); Kocenda v Archdiocese *667 of Detroit, 204 Mich. App. 659, 665; 516 NW2d 132 (1994). It was also for the jury to decide if plaintiff was subsequently fired from another job for incompetence. The jury's award was supported by the evidence. Rice, supra, p 638.
Testimony about possible bonuses or raises that plaintiff might have received in the future was not speculative and was properly admitted. The evidence was based upon defendant's past practices of awarding bonuses and merit increases. Moreover, plaintiff was also entitled to have the jury consider an award of future damages beyond one year. As discussed previously, the jury heard evidence that plaintiff could have reasonably expected to remain employed with defendant beyond one year even if he was removed from his position as a corporate officer. Rice, supra.
We also find no error with the jury instructions given in this case. First, no error can be predicated upon the Supreme Court's decision in Rowe v Montgomery Ward & Co, Inc, 437 Mich. 627; 473 NW2d 268 (1991). That decision involves oral contracts for job security. Plaintiff's theory was primarily dependent upon the policy manual and defendant's practices. The instructions were consistent with substantial justice and do not warrant reversal. McLemore v Detroit Receiving Hosp, 196 Mich. App. 391, 399; 493 NW2d 441 (1992).
The trial court instructed the jury consistent with SJI2d 110.05 and 110.07. Defendant has not delineated any error in regard to these instructions. Nor has defendant demonstrated why the court's decision not to give defendant's proposed instructions was error. Defendant has failed to provide this Court with a copy of the transcript of the closing arguments. Consequently, we are unable to determine that the standard jury instructions were inadequate to address the theories in *668 this case. Admiral Ins Co v Columbia Casualty Ins Co, 194 Mich. App. 300, 305; 486 NW2d 351 (1992).
We find no error requiring reversal regarding the instructions addressing employment terminable at will and satisfaction contracts. Although the trial court relied upon a "reasonableness" standard for satisfaction contracts, when "good faith" is the test, the difference in these terms is insignificant and does not require reversal. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 622-623; 292 NW2d 880 (1980); Schmand v Jandorf, 175 Mich. 88, 95-96; 140 N.W. 996 (1913); McLemore, supra, pp 400-401; SJI2d 110.11.
The verdict form used did not foreclose the jury from considering the defense theories that plaintiff's employment was at-will or pursuant to a satisfaction contract. The form was not intended to take the place of the jury instructions and it simply required the jury to indicate if plaintiff had met his burden.
The court properly refused to instruct regarding Delaware law because that subject was not raised until the parties were discussing the proposed jury instructions. Pursuant to MCL 600.2114a; MSA 27A.2114(1), the trial court had the authority to refuse to instruct regarding Delaware law because reasonable notice was not provided to plaintiff. Furthermore, defendant's proposed instruction would have offered little help, if any, to the jury.
The trial court properly relied on SJI2d 53.03 to reduce the future damages to present value. This Court has applied SJI2d 53.03 to employment claims, including wrongful discharge actions. Howard v Canteen Corp, 192 Mich. App. 427, 441; 481 NW2d 718 (1992); Goins v Ford Motor Co, 131 Mich. App. 185, 201; 347 NW2d 184 (1983). The use of the five percent rate also did not deny defendant due process. Verbison v Auto Club Ins Ass'n, *669 201 Mich. App. 635, 638; 506 NW2d 920 (1993); Klco v Dynamic Training Corp, 192 Mich. App. 39, 42; 480 NW2d 596 (1991).
Defendant contends that the trial court abused its discretion in various evidentiary rulings made. We review the trial court's decision to admit evidence for an abuse of discretion. Wolff v Automobile Club of Michigan, 194 Mich. App. 6, 14; 486 NW2d 75 (1992).
Defendant first argues that the trial court erred in excluding evidence of its revised personnel manual. The manual was revised after plaintiff's employment was terminated. Nonetheless, defendant maintains that the evidence was relevant with regard to the issue of damages because, in light of the revised policies, plaintiff did not have a legitimate expectation of continued future employment. We disagree.
In order for an employer's unilateral policy changes to become legally effective, reasonable notice must be provided to the affected employees. In re Certified Question, 432 Mich. 438, 457; 443 NW2d 112 (1989). In this instance the employment relationship between the parties had terminated before the adoption of the revised manual. Therefore, plaintiff did not have notice of the change, nor did he accept the revised terms. Id., pp 446-447, 450. Furthermore, there was no showing by defendant that the policy changes were made in good faith or were economically necessary. Cf. Neubacher v Globe Furniture Rentals, Inc, 205 Mich. App. 418; 522 NW2d 335 (1994). The trial court did not abuse its discretion in refusing to admit this evidence. The evidence was not relevant to plaintiff's claim for future damages. An employer cannot be permitted to rely on posttermination changes in its policies without good reason, such as economic necessity. Id. Otherwise, an employer *670 could change its policies specifically to avoid having to pay future damages.
The trial court also did not abuse its discretion in refusing to admit into evidence defendant's corporate bylaws. Defendant waited until after discovery was closed to produce the bylaws although they were requested during discovery. Defendant properly was barred from using the bylaws at trial in order to support a new theory of which plaintiff was previously unaware. Barlow v John Crane-Houdaille, Inc, 191 Mich. App. 244, 251; 477 NW2d 133 (1991). Finally, the actual bylaws were of questionable relevance because they pertained only to the removal of officers, which plaintiff did not dispute. Moreover, other evidence regarding the content of the bylaws was admitted at trial.
The trial court did not abuse its discretion in excluding the testimony of Thomas Orsi. Wolff, supra, p 14. His testimony was both irrelevant and cumulative.
Defendant also cites as error the trial court's decision to allow William Wright to testify on rebuttal. We find no abuse of discretion. Winiemko v Valenti, 203 Mich. App. 411, 418; 513 NW2d 181 (1994). Wright's testimony was clearly within the area of rebuttal evidence because it was offered to address the affirmative defense of whether plaintiff had mitigated his damages. Rasheed v Chrysler Corp, 445 Mich. 109, 120-123; 517 NW2d 19 (1994); Sullivan Industries, Inc v Double Seal Glass Co, Inc, 192 Mich. App. 333, 348; 480 NW2d 623 (1991). Furthermore, plaintiff relied upon defense counsel's statements that Wright would be called by defendant. We therefore find no abuse of discretion by the trial court in allowing Wright to testify on rebuttal.
Plaintiff's only issue in his cross appeal concerns *671 summary disposition of his age discrimination claim pursuant to MCL 37.2202(1)(a); MSA 3.548(202)(1)(a). The trial court addressed the motion under both MCR 2.116(C)(8) and (10). However, because the court went beyond the pleadings in deciding the motion, the motion appears to have been granted under MCR 2.116(C)(10), no genuine issue of material fact. Kreager v State Farm Mutual Automobile Ins Co, 197 Mich. App. 577, 579; 496 NW2d 346 (1992).
The trial court correctly determined that plaintiff was required to show that age was a significant factor in the firing decision, not a determining factor, to establish a prima facie case of age discrimination. Matras v Amoco Oil Co, 424 Mich. 675, 684; 385 NW2d 586 (1986). Defendant did not terminate plaintiff's employment for economic reasons. Plaintiff, therefore, did not have to meet the higher burden of proof. Id.; Wolff, supra, p 11.
We agree with plaintiff that the trial court erred in ruling that he did not present a prima facie case of intentional age discrimination. Plaintiff was qualified for the position. He produced evidence that showed there was a pattern of discharges of older employees. Those positions were then filled by younger employees. Most of the individuals who remained employees of defendant were in their thirties or forties. Plaintiff was fifty-five years old when his employment was terminated. His position was subsequently filled by a man who was forty-four years old. Thus, he established a prima facie case of age discrimination. Lytle v Malady, 209 Mich. App. 179, 185; 530 NW2d 135 (1995); Barnell, supra, p 120. Furthermore, whether defendant's legitimate, nondiscriminatory reasons for the discharge were a pretext was a question of fact.
Because plaintiff claimed additional damages for *672 his discrimination claim that were not reflected in the wrongful discharge verdict, we remand this matter for further proceedings regarding the discrimination claim. See Phillips v Butterball Farms Co, Inc (After Second Remand), 448 Mich. 239, 250, n 30; 531 NW2d 144 (1995); Howard, supra, p 435.
Affirmed with respect to the jury's verdict concerning wrongful discharge, but reversed and remanded for further proceedings with respect to the trial court's decision to grant summary disposition of plaintiff's age discrimination claim. We do not retain jurisdiction.