Lewis v. Sears, Roebuck & Co.

845 F.2d 624, 1988 U.S. App. LEXIS 5637, 46 Empl. Prac. Dec. (CCH) 37,942, 46 Fair Empl. Prac. Cas. (BNA) 1776, 1988 WL 37753
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 27, 1988
DocketNos. 86-1473, 86-1498, 86-1612, and 86-1613
StatusPublished
Cited by20 cases

This text of 845 F.2d 624 (Lewis v. Sears, Roebuck & Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lewis v. Sears, Roebuck & Co., 845 F.2d 624, 1988 U.S. App. LEXIS 5637, 46 Empl. Prac. Dec. (CCH) 37,942, 46 Fair Empl. Prac. Cas. (BNA) 1776, 1988 WL 37753 (6th Cir. 1988).

Opinions

KEITH, Circuit Judge.

Plaintiff Jeanette Lewis brought suit against Sears, Roebuck & Company on the grounds that Sears had racially discriminated against her in violation of Michigan’s Elliott-Larsen Act, Mich.Comp.Laws Ann. § 37.2202(1)(a) (West 1985), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. On November 25, 1985, Lewis prevailed at a jury trial on the Elliott-Larsen Act claim. The jury awarded her $30,597 in lost wages. In response to the jury verdict, Defendant Sears filed motions for judgment notwithstanding the verdict, new trial and remittitur, which were denied by the district court. On December 19, 1985, the court made separate findings of fact as to Lewis’ Title VII claim1 — the judge disagreed with the jury and found no discrimination. On January 30, 1986, the court denied Lewis’ motion to be reinstated to her former position at Sears, concluding that discrimination had not been conclusively shown. Lewis’ motion for reconsideration on the denial of equitable relief was denied; she then filed a timely appeal from the order denying reinstatement. Sears filed a cross-appeal from the jury verdict itself.

After the filing of the appeals, the district court decided that plaintiff's attorney’s fee award should be reduced by one-half. Plaintiff also filed a timely appeal from that determination, with Sears filing a cross-appeal as to the award of attorney’s fees at all.

For the reasons set forth below, we AFFIRM in part and REVERSE in part, ordering reinstatement and full attorney’s fees. Further, we REMAND the case back to the district court for additional consideration of counsel fees for work done pursuing this appeal.

I.

FACTS

Jeanette Lewis is a black woman. For twenty-three years she worked at Sears’ Troy, Michigan store, the third largest Sears store in the United States. At the time of her termination, Lewis sold “big ticket” (i.e., high-priced) items. As a general rule, the big-ticket sales positions are highly coveted by employees because of the earnings potential in those departments.

Lewis began working at the Troy Sears store in 1963, even before the store opened. She was employed in various departments over the years, and garnered satisfactory work records in those areas. In 1976, Lewis’ supervisor prodded Lewis into applying for a sales position in appliances, a big-ticket department. Lewis sought the position, and was soon promoted to that division.

Of the approximately ninety full-time big-ticket salespersons at the store during the relevant time period, there were no black men and four black women. The Troy store manager at the time of the events, Mr. Eugene White, was also black. Lewis’ immediate supervisor was Tom Draper, a white male, who in turn was under the supervision of Steve Machovec, another white male.

[627]*627The basis for Lewis’ complaint is that, while she admittedly fell short of Sears’ articulated sales goals for big-ticket items, unlike her similarly-situated white co-workers, she was not given the opportunity to transfer to another department. Instead, Lewis was terminated. In particular, at trial, evidence was presented that certain white big-ticket salespersons with sales deficiencies were transferred to different departments in the store instead of initially being faced with termination.

In August, September, October and December 1983, and on February 16, 1984, Lewis was given deficiency interviews for her poor sales performance. She was fired on February 29, 1984. Plaintiff’s evidence disclosed that the following white employees also experienced sales performance problems or were given deficiency interviews, but were transferred instead of fired: 1) Earl Lock received eleven write-ups for poor sales and poor attendance, and was transferred from the refrigerator department to men’s suits; 2) Daniel Klec-zkowski received a deficiency interview for selling less than half of anyone else in his home-improvement division, and was transferred to vacuum cleaners, where he failed to carry sales as well — only then was he terminated; 3) Margaret Rock’s ill health was responsible for her poor sales record, and she was transferred from home appliances to cameras; 4) Vaclav Kalivoda received a deficiency interview because he was far below goals in maintenance agreement performance (not sales), and was transferred to the garage; 5) Joanne Phillip was always last in the vacuum department in monthly sales, and was transferred to sporting goods; 6) Terry Sylvain was last in the appliances department for six of the first eight months of 1984, and was transferred to the jewelry department.

Sears introduced evidence that some of those transfers were for reasons other than poor sales (i.e., seniority, illness, or help with Christmas sales), and plaintiff countered with evidence suggesting that the transfers were indeed related to sub-par sales performance. Witnesses for Sears also testified that the policy with respect to departmental transfers of poorly-performing salespersons changed in 1983: the alleged new policy permitted termination instead of transferral. Plaintiff impeached this testimony at trial, and offered her own evidence attacking the existence of such a policy, showing that the alleged change was never put in writing and, if it existed, was inconsistently applied in practice. Sears also presented evidence that Douglas Kern, a white male in the home improvements division, was terminated for unsatisfactory performance, not transferred. Plaintiff attempted to distinguish Kern by evidence that 1) his sales per hour were less than half the division average (Lewis’ sales per hour for all of 1983 were just over seventy-six percent of the average in her division); 2) he failed to sell a single maintenance agreement in one month; and 3) he apparently “just gave up.”

The jury evidently believed plaintiff’s proofs, for after four and one-half hours of deliberations, it answered “yes” to the following special verdict question: “Did Sears discriminate against plaintiff because of her race in discharging her from her employment?” Plaintiff then moved for the equitable remedy of reinstatement and restoration of benefits, which the court denied.

After the jury’s verdict, the plaintiff moved for an award of attorney’s fees and costs under § 37.2802 of the Elliott-Larsen Act. The district court referred this motion to a magistrate for recommendation. Both parties filed objections to the magistrate’s report. While finding that the proper fee award here was $34,200, the district court ultimately cut that figure in half, awarding $17,100 in actual attorney’s fees and $1,490.31 in costs. The court stated that it was decreasing the award “by one-half to account for the results achieved and the amounts in question ($30,597 in back pay and benefits awarded to plaintiff),” presumably referring to the plaintiff’s inability to garner full relief — reinstatement— from the court.

Plaintiff appeals on two grounds: first, that the district court on the equitable motion for reinstatement was bound by the jury’s finding of discrimination, and should [628]*628have therefore ordered reinstatement; and second, that the district court improperly cut the award for attorney’s fees in half.

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845 F.2d 624, 1988 U.S. App. LEXIS 5637, 46 Empl. Prac. Dec. (CCH) 37,942, 46 Fair Empl. Prac. Cas. (BNA) 1776, 1988 WL 37753, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-sears-roebuck-co-ca6-1988.