Walter E. SMITH, Jr., Plaintiff-Appellant,
v.
CHARTER TOWNSHIP OF UNION, Robert Sullivan, Marian L. McDonald, Patricia Lyon, James Collins, Herbert Hills, Janice Howell, and Thomas McCann, Defendants-Appellees.
Docket No. 187677.
Court of Appeals of Michigan.
Submitted November 5, 1996, at Lansing. Decided September 16, 1997. Submitted on Rehearing October 28, 1997. Decided on Rehearing January 16, 1998, at 9:10 a.m. Released for Publication March 26, 1998.*291 Constance Y. Ross, East Lansing, for Plaintiff-Appellant.
Foster, Swift, Collins & Smith, P.C. by Kevin McGraw and Stephen J. Rhodes, Lansing, for Defendants-Appellees.
Before SMOLENSKI, P.J., and MARKMAN and T.G. POWER[*], JJ.
ON REHEARING
PER CURIAM.
Plaintiff appeals as of right an order granting partial summary disposition to defendants pursuant to MCR 2.116(C)(10).[1] In our initial opinion, Smith v. Union Charter Twp, unpublished opinion per curiam of the Court of Appeals, issued September 16, 1997 (Docket No. 187677), we reversed and remanded. Defendants moved for rehearing.[2] We hereby grant defendants' motion for rehearing and vacate our initial opinion. We now vacate and remand.
Defendant Union Charter Township advertised for candidates for an employment position entitled "Township Manager/Utility Manager," which position required, in part, "PE [Professional Engineering Degree] or EIT [Engineer in Training status] with business management background or equivalent, *292 plus local government experience. Responsible for management of water and sewer utilities...." Plaintiff, a black male, submitted a resume indicating that he had both a "B.S., Business Administration," and an associate of arts degree. Plaintiff's resume listed three employers and indicated that he had management experience. With respect to one employer, plaintiff's resume indicated that he had experience in the public sector supervising civil engineering projects, including the construction, maintenance, and repair of water and sewage lines.
Plaintiff and Wayne Zdrojkowski, a white male, emerged as finalists for the position. Defendant township offered the position to Zdrojkowski, who ultimately refused the offer. Defendant township did not offer the position to plaintiff and, instead, continued searching for candidates to fill the position.
Plaintiff filed suit against defendant township and certain township officials, alleging, in relevant part, a claim of racial discrimination under the Civil Rights Act, M.C.L. § 37.2101 et seq.; M.S.A. § 3.548(101) et seq. During discovery, defendants learned that plaintiff had falsified parts of his resume. Specifically, defendants discovered that plaintiff had only a general equivalency diploma (GED) with no college credits, and that he had little or no experience in designing, managing, operating, constructing, or maintaining a public utility.
Defendants moved for summary disposition, which motion the trial court granted. First, the court noted that the employment advertisement plaintiff had answered required a "PE or EIT ... or equivalent," and that "the equivalent refers to an equivalent degree in PE or EIT." The court indicated that it had reviewed plaintiff's resume, and found as fact that plaintiff was not qualified for the employment position.[3] The court made clear that this ground for its grant of summary disposition did not turn on plaintiff's resume fraud. Second, and alternatively, the court, noting that there was no Michigan law on this particular issue, found as a matter of law that plaintiff could not maintain his cause of action because of his resume fraud.
This Court reviews decisions on motions for summary disposition de novo to determine if the moving party was entitled to judgment as a matter of law. Stehlik v. Johnson (On Rehearing), 206 Mich.App. 83, 85, 520 N.W.2d 633 (1994).
MCR 2.116(C)(10) permits summary disposition when, except for the amount of damages, there is no genuine issue concerning any material fact and the moving party is entitled to [judgment] as a matter of law. A court reviewing such a motion must consider the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the opposing party and grant the benefit of any reasonable doubt to the opposing party. [Id.]
Under the Civil Rights Act, an employer is prohibited from failing or refusing to hire an individual because of race. M.C.L. § 37.2202; M.S.A. § 3.548(202). The parties agree that Carden v. General Motors Corp., 156 Mich.App. 202, 210, 401 N.W.2d 273 (1986), sets forth the applicable elements of a prima facie case of racial discrimination in the context of a refusal to hire:
The Plaintiff has the burden of proving the following:
(1) That he belonged to a racial minority;
(2) That he applied and was qualified for a job for which the employer was seeking applicants;
(3) That, despite his qualifications, he was rejected.
See also Matras v. Amoco Oil Co., 424 Mich. 675, 683-684, 385 N.W.2d 586 (1986).
This Court recently held that an employee discharged in violation of the Civil Rights Act is not barred from all relief when, after his discharge, the employer discovers evidence of wrongdoing that would have led to the *293 employee's termination on lawful and legitimate grounds. Wright v. Restaurant Concept Management, Inc., 210 Mich.App. 105, 109-110, 532 N.W.2d 889 (1995) (citing McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 115 S. Ct. 879, 130 L. Ed. 2d 852 [1995] ),[4] see also Horn v. Dep't of Corrections, 216 Mich.App. 58, 548 N.W.2d 660 (1996). "An employer should not be absolutely insulated from liability for violations of state civil rights laws because of the fortuitous discovery, after the employee's termination, of employee wrongdoing sufficient to have caused his termination." Wright, supra at 110, 532 N.W.2d 889. Rather, any wrongdoing on the employee's part may be reflected in the relief awarded. Id. at 111-112, 532 N.W.2d 889. Where evidence of employee misconduct is subsequently discovered in a discriminatory discharge case, reinstatement and front pay are generally not appropriate remedies. McKennon, supra; Wright, supra at 111-113, 532 N.W.2d 889. With respect to an award of backpay in such cases, "[t]he beginning point in the trial court's formulation of a remedy should be calculation of backpay from the date of the unlawful discharge to the date the new information was discovered." McKennon, supra; Wright, supra at 112, 532 N.W.2d 889. However, the relief ultimately accorded in such cases depends on the "`factual permutations and the equitable considerations' raised and in light of the remedies available under the Civil Rights Act." Wright, supra at 112-113, 532 N.W.2d 889 (quoting McKennon, supra). "This approach precludes the exoneration of either wrongdoer while preserving the statutory goal of deterring discrimination." Id. at 113, 532 N.W.2d 889.
Unlike McKennon, Wright and Horn, which involved wrongful termination, the present case involves an alleged wrongful failure to hire. The applicability of the after-acquired evidence rule to the present case is a legal question that is reviewed de novo. Horn, supra at 66, 548 N.W.2d 660. We find nothing in the logic of either the Supreme Court's opinion in McKennon or this Court's opinion in Wright that would preclude application of those cases to failure to hire cases. See Wright, supra at 110, 532 N.W.2d 889.[5] However, one important distinction between wrongful discharge and failure to hire cases that bears on the appropriate remedy is the employer's ability to observe the plaintiff working. In wrongful discharge cases, the employer has had the opportunity and incentive to monitor whether the plaintiff is qualified for the position during the time the plaintiff has worked for the employer. Accordingly, in awarding damages, it is appropriate that the starting point in calculating backpay be from the date of the discharge through the date the employer actually discovers the resume fraud. However, in failure to hire cases, the employer has had no similar opportunity to observe the plaintiff working and thereby to discover resume fraud relating to the plaintiff's qualifications for the position. Accordingly, in applying the remedy guidelines set forth in these cases to the failure to hire context, we believe that the starting point should be calculation of backpay from the date of the unlawful employment action to the date that the defendant would reasonably have discovered the plaintiff's misrepresentations if he had been hired.[6] Where the resume fraud relates to core qualifications for the position, for example, it can be presumed that the employer would have quickly discovered the plaintiff's lack of qualifications and, therefore, *294 the resume fraud if the plaintiff had started working for the employer.
Here, plaintiff is seeking recovery for alleged discrimination in violation of the Civil Rights Act despite his resume fraud. The position at issue, Township Manager/Utility Manager, required specific technical expertise and experience. The specific false representations on plaintiff's resume indicated that he was qualified for the position in question, when, in fact, he was not. Because these false representations of expertise and experience involved core qualifications for the position, we are convinced that plaintiff's lack of such expertise would quickly have become apparent to defendants if plaintiff had attempted to perform the job. Accordingly, here, if plaintiff were to prevail in his civil rights action against defendants, he would be entitled to extremely limited damages because defendants would soon have discovered his lack of qualifications and, therefore, his resume fraud had they hired him.
For these reasons, we vacate the trial court order granting defendants' motion for partial summary disposition and remand for further proceedings consistent with this opinion.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] Defendants contend that plaintiff's claim of appeal was not timely. A challenge to subject-matter jurisdiction may be raised at any time. Smith v. Smith, 218 Mich.App. 727, 729-730, 555 N.W.2d 271 (1996). Whether a court has subject-matter jurisdiction is a question of law that is reviewed de novo. Id. at 729, 555 N.W.2d 271 Here, we conclude that plaintiff's claim of appeal was timely. Although the order denying plaintiff's motion for reconsideration was signed on June 15, 1995, there was no "entry," as that term is defined in MCR 7.202(3), of this order until it was placed into the file and records of the lower court, which occurred on June 23, 1995, as evidenced by the date stamp on the order. Cf. MCR 2.001 and 2.602(A). Plaintiff's claim of appeal was then filed on July 13, 1995, i.e., within twenty-one days after the entry of the order denying plaintiff's motion for reconsideration. See MCR 7.204.
[2] While we grant defendants' motion for rehearing, we feel obligated nonetheless to note that defendants' counsel's (inaccurate, in our judgment) characterization of an article in Michigan Lawyers Weekly in support of their position has not reflected well upon their cause and is highly inappropriate as a "legal argument" before this Court.
[3] Defendants contend that even if a question of fact remains concerning the exact nature of the qualifications for the manager's position, plaintiff still cannot satisfy the qualifications requirement where plaintiff is "indisputably unqualified to manager either the Township or its utilities" because he possesses only a GED with no college credits and lacks "any work experience that would even make him close to being qualified."
[4] The trial court did not have the benefit of either Wright, supra, or McKennon, supra at the time it decided defendants' motion for summary disposition.
[5] See also Blong v. Secretary of Army, 886 F. Supp. 1576 (D.Kan., 1995), aff'd. 86 F.3d 1166 (CA10, 1996) (indicating that the Supreme Court's opinion in McKennon would apply in a gender discrimination case consisting of an alleged wrongful failure to hire); Perkins v. Brigham & Women's Hosp., 78 F.3d 747, 751 (CA1, 1996) ("[A]n employer cannot avoid liability in a discrimination case by exploiting a weakness in an employee's credentials ... that was not known to the employer at the time of the adverse employment action [and that, therefore, could not have figured in the decisional calculus].")
[6] Under M.C.L. § 37.2802; M.S.A. § 3.548(802), courts have discretion to award costs, including attorney fees, in civil rights actions. We presume that courts will exercise their discretion appropriately in considering in their decisions the extent of damages awarded to the plaintiff.