Matras v. Amoco Oil Co.

385 N.W.2d 586, 424 Mich. 675

Opinions

Levin, J.

The issue presented is whether the Court of Appeals erred in setting aside a jury verdict on the ground that there was insufficient evidence for a reasonable person to find that age discrimination was a determining factor in the discharge of Edmund Matras. We conclude that there was sufficient evidence for a reasonable person to find that age discrimination was a determining factor, and that the Court of Appeals did err.

Amoco instituted a lay-off plan that classified workers by age, sex, and race to maintain a fixed percentage of workers in each category. The record does not show a need for other than a neutral plan blind to age, sex, and race. During his termination interview, Matras was told by an Amoco manager that he was being discharged because he was low man in the over-forty group. While Amoco contends Matras would have been discharged even if Amoco had not divided its employees into age, sex, and race categories, Amoco presented no evidence indicating how it would have evaluated its employees had it not employed the plan and, consequently, no evidence of what might have been the result under an alternative plan.

The decision of the Court of Appeals is reversed, and the cause is remanded to the Court of Appeals for consideration of the issues raised by Amoco in the Court of Appeals that were not addressed by that Court.

I

Edmund J. Matras brought this age discrimination action under the Fair Employment Practices Act.¹

Matras was forty-one years old when he was discharged in 1975. He had been working as a territory manager for Amoco since 1963. Evaluations of his performance in his first years were quite favorable. In 1965, he was described as "a very aggressive young man who learns fast and shows great determination.” In 1966, he won a sales contest because "for ten months of 1966, your efforts and team leadership have enabled you to come out on top in overall sales ranking.” In 1972 and 1973, his performance evaluations took a turn for the worse. On a scale of one to six, with six being the worst, Matras received a six for 1972. This rating by Robert Johnson, Matras’ supervisor for the last three months of 1972, was based on Matras’ failure to achieve basic gasoline sales objectives for his territory, which had been expanded to include five new stations. Matras had received an interim rating of two for the first nine months of 1972. His 1973 performance rating was four.

In 1974, Amoco decided to reorganize and reduce its sales force. "Manpower Consolidation Guidelines” were prepared. The guidelines stated that the reorganizations would be conducted at the regional level. Sales personnel in the region would be divided into four categories: women, racial minorities, persons between the ages of forty and sixty-five, and white males under forty.

Only the last two appraisals were used in the Detroit region where Matras was employed. Matras received a score of ten. Four other employees also received a ten, but no one had worse than a ten. Two of the employees with ten were discharged. Two were retained. One of the two who was retained was a white male older than Matras. The other was a black woman, who was not listed in the over-forty category. The trial court concluded she was under forty. Within the Detroit marketing region, the reorganization resulted in the termination of twenty-seven of 160 territory managers. Amoco did not always merely add up the scores within the groups and terminate those with the worst scores. Amoco made exceptions and apparently "skipped around.”

During Matras’ termination interview, Amoco’s district manager told Matras "you’re low man in the over age 40 group, so we are going to have to let you go.” The making of this statement was not disputed.

At the close of Matras’ proofs, Amoco moved for a directed verdict. In denying the motion, the trial court first alluded to the evidence of age discrimination other than the plan. This evidence included the early reference to Matras as an "aggressive young man,” an unwanted party given by Johnson to celebrate Matras’ fortieth birthday, his nickname among employees, Gramps, and the appearance of his age on evaluation forms. The trial court said, "if that were the only evidence of age discrimination I would direct a verdict in favor of the defendant.” The court went on to say, however, "there is ... at least a prima facie showing that the plan itself, without reference to any other piece of evidence, is discriminatory on account of age.” The plan was a "negative,” not "an affirmative action plan.” "[I]t takes three protected groups and mandates . . . regardless of how they compare to the unprotected group . . . that some minorities . . . people 40-65 . . . and women will be discharged ... to maintain their proportion of the whole.” Amoco rested, although its motion for a directed verdict had been denied.

The jury found for the plaintiff and awarded him $55,000 for lost wages and $60,000 for other damages. The trial court denied Amoco’s motion for judgment notwithstanding the verdict and Matras’ motion for attorney fees.

In a split decision, the Court of Appeals reversed, ruling that there was insufficient evidence to go to the jury.

II

In reviewing a trial court’s failure to grant a defendant’s motion for a directed verdict or a judgment notwithstanding the verdict, we examine the testimony and all legitimate inferences that may be drawn in the light most favorable to the plaintiff.² If reasonable jurors could honestly have reached different conclusions, the motion should have been denied.³ If reasonable jurors could disagree, neither the trial court nor this Court has the authority to substitute its judgment for that of the jury.

In an age discrimination case, the question thus becomes whether the plaintiff has presented evidence " 'which, when viewed in the light most favorable to the plaintiff, would permit a reasonable jury to find that he was discharged because of his age.’ ”⁴

A

A jury can find that the discharge was "because of age” even if age was not the sole factor. As accurately expressed in the Michigan Standard Jury Instruction, "[age] does not have to be the only reason, or even the main reason, but it does have to be one of the reasons which made a difference in determining whether or not to [discharge] the plaintiff.”⁵ Another formulation would be that age is a determining factor when the unlawful adverse action would not have occurred without age discrimination. Alternative expressions of the determining factor concept are "but for causation” or "causation in fact.”⁶

In the instant case, the question therefore becomes whether there was sufficient evidence, when the evidence and inferences therefrom are viewed in a light most favorable to Matras, for reasonable jurors to conclude that age discrimination was a determining factor in the decision to discharge him.

B

Matras suggests that his cause could also have been submitted to the jury upon satisfaction of the burden of proof requirements articulated in McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973). In McDonnell Douglas, the United States Supreme Court held that a Title VII complainant can satisfy the initial burden of establishing a prima facie case

by showing (i) that [plaintiff] belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. [Id., 802.]

The McDonnell Douglas prima facie case approach has been adapted to age discrimination discharge cases by requiring the plaintiff to show "(1) he was a member of the protected class; (2) he was discharged; (3) he was qualified for the position; and (4) he was replaced by a younger person.”⁷

Age discrimination "may of course be proved under ordinary principles of proof by any direct or indirect evidence relevant to and sufficiently probative of the issue . . . without resort to any special judicially created presumptions or inferences related to the evidence.”⁸ "When this kind of direct or circumstantial proof is adduced, there is no need to employ the McDonnell Douglas presumption-based scheme.”⁹

The inquiry is basically the same under either approach. The United States Supreme Court in McDonnell Douglas stated: “The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations.”¹⁰ It would, we believe, be “inappropriate simply to borrow and apply . . . automatically”¹¹ the McDonnell Douglas standards when the "employer is making cutbacks due to economic necessity.”¹² Evidence that a competent older employee was terminated, and a younger employee was retained, is insufficient standing alone to establish a prima facie case when the employer reduces his work force because of economic necessity. The rationale behind the McDonnell Douglas formula is that its four-part test alone "eliminates the most likely legitimate causes for the employer’s adverse action.”¹³ This formulation is incomplete in the work-force-reduction situation.

To establish a prima facie case of age discrimination when an employer lays off employees for economic reasons, the courts have required the employee to present sufficient evidence on the ultimate question — whether age was a determining factor in the decision to discharge the older protected employee.¹⁴ Accordingly, in the instant case, the McDonnell Douglas prima facie case approach folds into the traditional directed verdict/judgment notwithstanding the verdict standard.

Ill

We turn to a consideration of the evidence in this case.

To establish that age was a determining factor in his discharge, Matras relies on the following evidence in addition to the plan. An earlier evaluation referred to him as "an aggressive young man.” He was nicknamed "Gramps” by his coworkers. Also, his sales manager, Robert Johnson, celebrated Matras fortieth birthday party "despite Mr. Matras desire not to call attention to this milestone.”

We agree with the trial court that this evidence is not alone sufficient. The comment about Matras being an aggressive young man is simply descriptive. None of the persons responsible for Matras termination called him "Gramps,” only his coworkers. The birthday party was just an acknowledgment of Matras birthday in the course of a celebration of the group’s success in a company. incentive program. Johnson testified that he regularly recognized his employees’ birthdays.

Matras also argues that "age discrimination was designed into the evaluation process.” Although the evaluations might not fairly reflect Matras performance during the years in question,¹⁵ and they clearly stand out in striking contrast to his previous evaluations, there is insufficient evidence to conclude that the low evaluations were a product of age discrimination. The act does not provide a remedy for unfair treatment unless it was because of age discrimination.

The trial court correctly concluded that "there is ... at least a prima facie showing that the plan itself ... is discriminatory on account of age” and that Matras was discharged because of this discriminatory plan.

The manpower-consolidation guidelines called for sales personnel in each region to be divided into four categories: women, racial minorities, persons over forty, and white males under forty. Employees would be "listed in each category for which protected.” White males were not "protected.” Women, racial minorities, and employees between forty and sixty-five years of age were to "retain their proportionate share of the jobs.”

In the course of denying Amoco’s motion for a directed verdict, the trial court characterized the plan in the following manner:

This is not an affirmative action plan, this is not a plan which seeks to give certain protected groups an advantage. This is ... a plan to fire people. And it mandates . . . that certain people will be fired. And it takes three protected groups and mandates, regardless ... of how they compare to the unprotected group, which is the largest single group in this plan, it mandates that some minorities will be discharged; that some people 40 to 65 will be discharged . . . and . . . that some women will be discharged, so long as . . . that is necessary to maintain their proportion of the whole.

Under this plan [if] the lowest people in the ranking — this is hypothetical — if they all fell within the unprotected group, this plan would require that in order to maintain this balance, the percentages, it would require that somebody in the age group, the minority group and the women group would be discharged.

So for example, if — this is again hypothetical— if the plaintiff in this case . . . would have scored better than all persons in the unprotected group, but because of some peculiar situation all the older people were more talented, he, nevertheless, fell at the bottom of the 40 to 65 group, this plan would insure that he would be discharged .... And that’s why this plan . . . discriminates against them [the protected groups] to the extent that it insures they will be discharged in order to maintain this balance ....

This interpretation of how the manpower consolidation guidelines worked is consistent with the example contained in the guidelines. The example posited forty-three territory managers and a cutback to thirty-five. It was assumed that the forty-three employees broke down into the following categories:

Women Minorities 40-65 Unprotected Total

3 (6.9%) 5 (11.6%) 15 (34.8%) 20 (46.5%) 43 (100%)

If each group were to retain its proportionate share of the thirty-five remaining jobs, the end result would be:

2.41 4.06 12.18 16.27 35

It is also consistent with the explanation given Matras when he was notified of his termination: "You’re low man in the over age 40 group, so we are going to have to let you go.”

On appeal, but apparently not at trial, Amoco contested this characterization of how the plan works. "Contrary to plaintiffs assertions, [the plan] does not mandate that older employees with better performance than younger employees should be reduced, or that the ratio of employees who are not protected should be maintained.” During argument in this Court, counsel for Amoco followed up on this point, emphasizing that the burden will fall on the unprotected classes. Nevertheless, neither the plan nor the record suggests this interpretation. Moreover, because of the procedural posture of the instant case, we need not choose between the two interpretations: "Once it is determined that reasonable persons may differ as to whether a fact has been proved [and we believe reasonable persons could disagree in the instant case], the probative value of the evidence, and the conclusions to be drawn from it, lies in the hands of the jury.”¹⁶ Once again, we emphasize that, on a motion for a directed verdict, we review the testimony and all legitimate inferences that may be drawn therefrom in a light most favorable to the plaintiff.¹⁷

C

Although the trial court’s reasons for distinguishing the mechanics of the classification plan in the instant case from traditional affirmative action plans are adequate, further elaboration may provide a better understanding of why Amoco’s plan violated the statutory prohibition against age discrimination. Amoco contends that the purpose of the plan was to assure that the three groups it set aside for special treatment — women, racial minorities, and persons between the ages of 40-65 — were not adversely affected.¹⁸ There is, however, no indication that a neutral consolidation plan that did not classify by sex, age, or racial status would have had an adverse effect on the three groups. The record does not indicate that the three groups needed special treatment.

As the trial court indicated, there is also no indication that the manpower consolidation guidelines granted the kind of preferential treatment based on group status that has been allowed. In Gill v Union Carbide Corp,19 which Amoco relies on as support for the proposition that group treatment does not run afoul of the Age Discrimination in Employment Act, age was "a consideration used only for the benefit of an employee and in no way could such be used to adversely affect those considered for termination.”²⁰ Age was not a plus factor in the instant case.

A classification can be purely beneficial to a particular group in terms of increasing the group’s job security when at least a certain percentage is reserved for the group.²¹ The "at least” formulation creates a floor and not a ceiling. When a floor is created, certain employees within the group who might otherwise have been discharged will be retained. The evidence, viewed in the light most favorable to Matras, indicates that a floor was not created.

What was created was a fixed percentage. This did not provide more protection for the employees within the three groups set aside for special treatment by the employer; instead, it gave each group either less or more protection, depending on how one group compared to the other groups. It assured that if the members of one of the employer’s "protected” groups immediately above the cutoff line scored worse than employees being discharged in other groups, then some employees within that protected group who would otherwise have been discharged would be retained because of their age, sex, or race; while if the members of that group immediately below the cutoff line scored better than employees being retained in other groups, then some employees in the "protected” group who deserved to be retained would be discharged because of their age, sex, or race.

What the plan ultimately required was unequal treatment because of age, sex, or race to maintain percentages of age, sex, and race. While the United States Supreme Court has approved in the hiring context a "temporary” affirmative action plan "not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance,” the instant case is clearly distinguishable.²² As the trial court noted, this was a plan "to fire people.” Its sole purpose was to maintain an age, sex, and racial balance. The record does not indicate a need for a lay-off plan that was not a neutral evaluation plan blind to race, sex, and age.

D

Matras cannot recover by showing that Amoco discriminated on account of age unless the discrimination was a determining factor in the adverse action taken against him. If the discharge of Matras would have taken place without regard to age discrimination, age was not a determining factor in his discharge.

What Amoco would have done with Matras had it not developed its discriminatory plan is far more difficult to determine than what it actually did. It is undisputed that Amoco divided its employees by age, sex, and race, and that Matras was told he was discharged because he was "low man in the over age 40 group.” To determine what Amoco would have done had it not decided to stratify its work force into categories involves a comparison of "what did occur with what would have occurred if hypothetical, contrary-to-fact conditions had existed.”²³ This "comparison between factual and contrary-to-fact conditions is implicit in the classic formulation that a cause is a necessary antecedent. . . . The term 'cause in fact’ embraces all things which have so far contributed to the result that without them it would not have occurred.” Id. This inquiry is distinctly the province of the jury unless there is insufficient evidence for a reasonable person to find as the jury ultimately did.

After reviewing all the evidence and inferences therefrom in the light most favorable to Matras, we conclude that a reasonable person could have concluded that the discriminatory plan was a determining factor in Matras’ discharge. We are especially reluctant to conclude that a reasonable person could not have found that age was a determining factor on the basis of a "hypothetical contrary to fact condition” — what would have happened had the employer not discriminatorily divided its work force. This is particularly true in the instant case, because Amoco presented no evidence to suggest how it would have reduced its work force had it not employed the discriminatory plan. Amoco was the party in the best position to show what would or would not have happened had the discriminatory plan not been employed. In circumstances such as these, the burden of producing evidence has been placed on the party in the best position to provide the necessary information.²⁴ Thus, even if we were not obligated to view the evidence and the inferences that could be drawn therefrom in the light most favorable to Matras, we could not accept Amoco’s hypothesis.

Amoco contends that Matras would have been discharged regardless of the discriminatory plan because he had received a score of ten. Amoco suggests that his score was so poor that he would not have been retained regardless of the classifications by age, sex, and race. Even if a score of ten meant any employee in any group would be automatically discharged, and that was not true in the instant case, there is no evidence to suggest that Amoco would have relied on the two-year evaluations if the discriminatory plan had not been employed. The plan itself called for a focus on the evaluations. If the need for preserving the balance of the age, sex, and race of the work force had been removed, more individualization might have been allowed. In the past, work-force reductions had been characterized by more in-depth examinations of the employees. The need to preserve the fixed percentages diminished the flexibility of the evaluation process. A more flexible approach might have included an examination of Matras’ entire record and his criticisms of his recent evaluations, and might have led to a different result.

Even if one looks only at the two-year evaluations, it is by no means clear that they would have led to Matras’ discharge had all the employees been lumped together. Twenty-seven employees were eventually terminated.²⁵ Although four other employees received a score of ten, no one received a worse score. These four were not, however, all terminated. Two were retained, and two were dismissed. The trial court noted that one of those retained was a black woman under forty and the other person retained was a white man over forty. The black woman was protected because of the plan. An exception was made to protect the white man because of his nineteen years of service. This was not the only example of an employee who was dismissed in order to retain an employee in the same group with the same or lower score. There was some evidence in the record that Amoco "skipped around” within the groups. The basis of the exceptions was not clear.

The possible negative consequences of group status become clearer upon examination of Amoco’s explanation for the exception made for the white man in the over-forty group who had a ten. "Mr. Stritzinger, like Mr. Matras, had a 10, however Mr. Stritzinger had 19 years of service.” Stritzinger was retained although employees with the same and better evaluations were discharged. Another employee with twenty-four years experience was retained over an employee with less seniority but higher evaluations. Matras’ eleven years did not carry much weight in the over-forty group, but it might have if the work force was lumped together.

In sum, the Court of Appeals erred when it set aside the verdict in favor of Matras. It substituted its judgment for that of the jury although there was sufficient evidence for a reasonable person to conclude that age was a determining factor in the decision to discharge Matras. Amoco discriminatorily divided its employees into groups, and Amoco said Matras was discharged because he was low man in the over-forty group. Amoco did not present evidence of what it would have done had it not so discriminatorily divided its work force. Amoco merely hypothesized what would have happened. A reasonable person could therefore have found that age was a determining factor in the discharge.

IV

Matras seeks to recover attorney fees under the provision of the Civil Rights Act.²⁶ Although the Court of Appeals had ruled against Matras on the merits, it went on to rule that attorney fees are not recoverable because Matras’ claim was brought under the fepa and not the Civil Rights Act.²⁷

Attorney fees ordinarily are not recoverable at common law, but may be recoverable where a statute specifically so provides.²⁸ The fepa did not so provide, and no claim is made that attorney fees are recoverable by a person who was awarded damages for a violation of the fepa.

Matras claims that the pertinent substantive provisions of the fepa are codified and continued in the Civil Rights Act and that the provision for attorney fees in the Civil Rights Act should be viewed as a procedural amendment of the codified enactment. It is argued that the rule of construction stated in some cases by this Court that a procedural amendment is retroactive should be applied in the instant case.²⁹_

In construing a statute, a court seeks to implement the intent of the Legislature. The ultimate question is whether the Legislature intended that the amendments of the Civil Rights Act providing a judicial remedy for a violation of that act and for the award of reasonable attorney fees to successful claimants apply to causes of action which arose under the fepa.

In Holmes v Haughton Elevator Co, 404 Mich 36; 272 NW2d 550 (1978), this Court considered whether an action for age discrimination violative of the fepa could be commenced in the circuit court without regard to whether a timely complaint had been filed with the Civil Rights Commission. The Court found that such a civil action could be commenced but did so not on the basis of the Civil Rights Act, but rather by extending this Court’s earlier decision in Pompey v General Motors Corp, 385 Mich 537; 189 NW2d 243 (1971), which held that such an action could be commenced for racial discrimination. A concurring justice would have found that there was such a judicial remedy on the basis of both the extension of Pompey and by reading the Civil Rights Act to provide a direct cause of action for age discrimination that occurred before the effective date of that act.³⁰

We are of the opinion that the direct cause of action and attorney fees remedial provisions added by the Civil Rights Act, as well as the substantive provisions of that act concerning age discrimination in employment, apply only to causes of action arising on and after the effective date of that act. The Civil Rights Act did not merely codify preexisting statutes and procedural remedies. It worked an extensive expansion of the preexisting substantive provisions of civil rights legislation. In that context we have no basis for ascribing to the Legislature, in providing that

(i) "A person alleging a violation of this act may bring a civil action,” and

(ii) Damages may be avoided for "each violation of this act” including reasonable attorney fees,³¹ and

(iii) "A court, in rendering a judgment in an action brought pursuant to this article, may award reasonable attorney fees” and other costs of litigation (emphasis added),³²

an intent to provide for recovery of attorney fees in an action brought to enforce a substantive right that arose under a statute repealed by "this act.”

Matras’ substantive right not to be discriminated against in employment because of age arose under the fepa, and not under "this act,” the Civil Rights Act. But for the fepa, Matras would have no cause of action against Amoco.³³

Matras may not recover attorney fees because his cause of action did not arise under the Civil Rights Act, and that act provides for recovery of attorney fees only in a civil action alleging a violation of that act ("this act”) brought under the "article” of the Civil Rights Act providing for such a civil action.

V

The decision of the Court of Appeals is reversed, ¿nd the cause is remanded to the Court of Appeals for consideration of the issues raised by Amoco in the Court of Appeals that were not addressed by that Court.

Reversed and remanded to the Court of Appeals.

Williams, C.J., and Brickley, Cavanagh, and Boyle, JJ., concurred with Levin, J.

1 MCL 423.301 et seq.; MSA 17.458(1) et seq. (repealed and replaced by 1976 PA 453, MCL 37.2101 et seq.; MSA 3.548[101] et seq.).

2 See Caldwell v Fox, 394 Mich 401, 407; 231 NW2d 46 (1975); Sparks v Luplow, 372 Mich 198, 202; 125 NW2d 304 (1963).

3 See Sparks, supra.

4 LaGrant v Gulf & Western Mfg Co, Inc, 748 F2d 1087, 1090 (CA 6, 1984).

5 SJI2d 105.02. See also Laugesen v Anaconda Co, 510 F2d 307, 317 (CA 6, 1975), stating: "[TJhere could be more than one factor in the decision to discharge him . . . and he [would be] nevertheless entitled to recover if one such factor was his age and if in fact it made a difference in determining whether he was to be retained or discharged.”

6 Cuddy v Carmen, 224 US App DC 287, 292, n 23; 694 F2d 853 (1982).

7 Ackerman v Diamond Shamrock Corp, 670 F2d 66, 69 (CA 6, 1982).

8 Lovelace v Sherwin-Williams Co, 681 F2d 230, 239 (CA 4, 1982).

9 Cline v Roadway Express, Inc, 689 F2d 481, 485 (CA 4, 1982).

10 McDonnell Douglas, supra, 802, n 13.

11 Laugesen, supra, 312.

12 Holley v Sanyo Mfg, 771 F2d 1161, 1166 (CA 8, 1985).

13 Schlei & Grossman, Employment Discrimination Law (2d ed), 1299; see also Teamsters v United States, 431 US 324, 358, n 44; 97 S Ct 1843; 52 L Ed 2d 396 (1977); Texas Dep’t of Community Affairs v Burdine, 450 US 248; 101 S Ct 1089; 67 L Ed 2d 207 (1981).

14 See Holley, supra, 1166; Schlei, supra, 498.

15 The downturn in Matras’ ratings could be traced directly to the addition of the five new stations. Although it is a point of contention, the objectives assigned to the new stations might not have been realistic. There was conflicting testimony regarding how much say Matras had in setting the objectives.

16 Prosser & Keeton, Torts (5th ed), p 236.

17 See Caldwell, n 2 supra, 407.

18 On appeal to this Court, Amoco argues that because of its then-existing obligations as an employer covered by federal equal employment opportunity laws and as a federal contractor bound by the Office of Federal Contract Compliance Regulations (ofccr), Amoco sought to minimize any adverse effect of the work-force reduction on protected minorities. Amoco contends that to accomplish this goal, the plan therefore sorted employees according to their federally protected classes of race, sex and "over 40.”

To the extent that Amoco argues that its plan was mandated by the ofccr, we note the following: (1) defendant conceded during oral argument before this Court that the ofccr did not require the particular plan implemented here; (2) the ofccr were not set forth as a defense or justification of the plan at trial; and (3) defendant did not provide a copy of the pertinent regulations to this Court.

Accordingly, we do not address in this case a work-force-reduction plan which has been established to have been implemented pursuant to the affirmative action policies of a federal or state agency.

19 368 F Supp 364 (ED Tenn, 1973).

20 Id., 368.

21 See Fullilove v Klutznick, 448 US 448; 100 S Ct 2758; 65 L Ed 2d 902 (1980).

22 United Steelworkers of America v Weber, 443 US 193, 208; 99 S Ct 2721; 61 L Ed 2d 480 (1979).

23 Prosser, n 16 supra, 265.

24 See Teamsters v United States, n 13 supra, 359, n 45, where the United States Supreme Court said:

"Although the prima facie case did not conclusively demonstrate that all of the employer’s decisions were part of the proved discriminatory pattern and practice, it did create a greater likelihood that any single decision was a component of the overall pattern. Moreover, the finding of a pattern or practice changed the position of the employer to that of a proved wrongdoer. Finally, the employer was in the best position to show why any individual employee was denied an employment opportunity. Insofar as the reasons related to available vacancies or the employer’s evaluation of the applicant’s qualifications, the company’s records were the most relevant items of proof. If the refusal to hire was based on other factors, the employer and its agents knew best what those factors were and the extent to which they influenced the decisionmaking process.”

25 Matras’ counsel stated that there was "no evidence [in the record] that 27 had to be cut,” and we agree. While there was evidence of a need for a reduction, no specific numbers were introduced into evidence.

26 MCL 37.2801; MSA 3.548(801).

27 The cause, however, was submitted to the jury only on the fepa count because the substantive right arose out of an act of discrimination that occurred before the effective date of the Civil Rights Act. Indeed, the complaint was filed before the Civil Rights Act was enacted and the civil rights count had been added by amendment.

The Court of Appeals has consistently held that the Civil Rights Act does not provide for payment of attorney fees for actions brought under the fepa for alleged violations before the enactment of the Civil Rights Act. See Dep’t of Civil Rights ex rel Cornell v Edward W Sparrow Hospital Ass’n, 119 Mich App 387, 392; 326 NW2d 519 (1982), rev’d on other grounds 423 Mich 548 (1985), and Adama v Doehler-Jarvis, 144 Mich App 764; 376 NW2d 406 (1985). In Sparrow, on further appeal to this Court, the majority concluded that there was no need to address the question, because it had not been properly preserved. Sparrow, supra, 575-576.

28 See State Farm Mutual Automobile Ins Co v Allen, 50 Mich App 71, 74; 212 NW2d 821 (1973); 20 Am Jur 2d, Costs, § 72, pp 58-59.

29 See, e.g., Kalamazoo Ed Ass’n v Kalamazoo Public Schools, 406 Mich 579, 601; 281 NW2d 454 (1979); Ballog v Knight Newspapers, Inc, 381 Mich 527; 164 NW2d 19 (1969); Hansen-Snyder Co v General Motors Corp, 371 Mich 480, 487; 124 NW2d 286 (1963).

30 The concurring justice cited Schroeder v Dayton-Hudson Corp, 448 F Supp 910 (ED Mich, 1977), rev’d in part on reh 456 F Supp 650 (ED Mich, 1978).

³¹

32 MCL 37.2802; MSA 3.548(802).

33 The Civil Rights Act repeals the fepa. MCL 37.2804; MSA 3.548(804). Such repeal did not release Amoco from the liability incurred under that act which is treated as remaining in force for the purpose of instituting or sustaining an action for enforcement of liability arising under that act. MCL 8.4a; MSA 2.214.