Sumner v. Goodyear Tire & Rubber Co.

Archer, J.

(concurring). While I agree and have signed the majority’s opinion, I write separately to address issues raised by the dissent.

FACTS

During his first year of employment at the Goodyear Tire & Rubber Company, Daniel Sumner had held several positions without any problems or complaints. In his second year, 1972, Mr. Sumner *548 began work as a general operator in the tire room under the supervision of James Grace, the shift foreman. James Grace verbally abused Mr. Sumner, calling him "nigger,” "boy,” "blackboy,” "cottonpicker,” and other racially derogatory names. These racial slurs were overheard by other Goodyear employees. A division chairman of the company testified that James Grace said, in referring to Mr. Sumner, "This is one nigger I am out to get if he doesn’t straighten up.” A union committeeman, who is white, testified that Grace referred to black employees as either a "good nigger” or a "bad nigger.” A former black employee testified that Grace also addressed him in racially derogatory terms approximately "once a week.” That same employee testified that Grace, in referring to Mr. Sumner and his hairstyle, said "what did he think he was doing, picking cotton?”

On one occasion, after Mr. Sumner had injured his shoulder at work, Grace followed him to the plant hospital. The nurse at the hospital testified that after Sumner had requested a gate pass to allow him to go home due to the injury Grace commanded the nurse "not to give [Sumner] a gate pass and he was not going out of the building.” This same nurse testified that she gave Sumner the pass anyway. Later that day, Grace told Sumner, "Get your black ass in my office, boy” for a meeting with a union committeeman and a supervisor. At this meeting, Grace loudly accused Sumner and persistently pointed his finger at him. When Sumner attempted to speak, Grace pointed his finger close to Sumner’s face and shouted repeatedly, "Say what you want to say, [d]o what you want to do,” inviting him to fight. On another occasion, Sumner punctured his arm on a hook and went to the hospital. Grace followed him, told him there was nothing wrong with him, and to get *549 back down to work because Grace needed the tires. The following day, because of his injury, the doctor gave Sumner "light duty” work. When Mr. Sumner reported to Grace for light duty, Grace remarked to one of his supervisors, "Give that boy a bucket and some rags and let him clean down all the truck tire machines.” As Sumner went to clean the tire machines, Grace stated, "That’s the kind of job you need, boy.”

These events and the name-calling distressed Mr. Sumner. His testimony revealed that, initially, he tried not to let it bother him because he had a family to support. Finally, in an attempt to get some relief, Sumner began to complain. On at least three occasions he reported the verbal abuse to union officers, one of whom told him nothing could be done without a witness and advised Sumner to transfer to another department. Sumner also complained several times to the divisional chairman, who followed through on the complaint solely by checking with Grace. Grace informed the chairman that Sumner had to be followed to see that he did the job. However, at trial, Grace testified that he never had a problem with the quality of Sumner’s work. Although Grace, who considers himself a strict disciplinarian, testified Sumner had an attendance problem at work, he never gave Sumner a written warning regarding the problem.

Sumner followed the union committeeman’s advice, and transferred to another department. Even at the new job, Grace monitored Sumner. He would come over to the new department on a weekly basis, watch Sumner work and make "smart” remarks, once threatening that he was going to see to it that Sumner lost his job.

About a year later, Sumner bid on a servicing job. Unbeknownst to Sumner, Grace was the foreman on that job. The problems began anew. Grace *550 intimidated Sumner by watching him all day, and continued to call him "boy.” To avoid Grace, Sumner switched to another shift, under the supervision of Harold Bohnett. On the first night, Bohnett said to Sumner, "You must be Mr. Grace’s nigger.” From that point, Bohnett’s behavior echoed that of Grace. Bohnett called Sumner "boy” and "pickaninny.”

Some time later, Daniel Sumner missed a day of work. Bohnett threatened, "We have got you now, 'boy,’ ” and "Let me see you work your way out of this one 'nigger.’ ” At the end of his shift, Daniel Sumner went to the local union president. Sumner complained that Grace and Bohnett were bullying him, calling him "nigger” and "boy,” and threatening that they would "get him now.” The union president attempted to set up a meeting. But, due to the absence of the divisional chairman, the meeting never occurred.

That same day, Sumner complained to a Goodyear employee who was also the president of the naacp. The employee advised Sumner to go to the Civil Rights Commission. Later that day, Sumner went to the Jackson office of the Department of Civil Rights and complained to the district executive for the preventative services division, who advised Sumner to first exhaust the grievance process. The district executive also investigated Sumner’s complaint. He talked with other Goodyear employees and determined that Sumner had a valid complaint. He, however, could not approach the company informally before legal process.

The next night, August 5, 1974, Daniel Sumner came to work early. Bohnett approached Daniel Sumner, stuck a finger in his face, and began to laugh. Daniel Sumner finally lost his temper. He followed Bohnett into the office and initiated an *551 altercation with him, which also involved other supervisors.

After this altercation, Daniel Sumner was placed on a two-day "cooling off” period imposed pursuant to the collective bargaining agreement. Sumner was discharged from employment four days after the altercation, on August 9, 1974. The reason cited for discharge was his physical assault of two shift foremen. The termination letter states that Daniel Sumner had alleged harassment. However, there is no evidence that Goodyear ever investigated Sumner’s allegations.

On November 7, 1974, ninety days from the date of his discharge from Goodyear, Daniel Sumner filed a complaint in the Jackson office of the Department of Civil Rights against Goodyear, alleging that he had been continuously harassed by his supervisors, that this caused him to strike them, resulting in his discharge, and that this discharge was racially motivated.

THE CONTINUING VIOLATION

The Fair Employment Practices Act, MCL 423.301 et seq.; MSA 17.458(1) et seq., 1 governs this situation. The act provided in relevant part:

Any individual claiming to be aggrieved by an alleged unlawful employment practice may, by himself or his agent, make, sign and file with the board, within 90 days after the alleged act of discrimination, a verified complaint in writing .... [Emphasis added. MCL 423.307(b); MSA 17.458(7)(b).]

Mr. Sumner was discharged on August 9, 1974. His complaint was filed with the Department of *552 Civil Rights on November 7, 1974 — exactly ninety days after his discharge. The last illegal act was not the fight. The last illegal act was the discharge under the guise of the fight. As indicated by the facts, the racial harassment by supervisors Grace and Bohnett was part of a continuous course of conduct which was connected to the discharge. Thus, in my judgment, the racial harassment charge was timely. As stated by Judge Warren in the circuit court opinion:

This Court has found as a matter of fact, that the acts of racial harassment and the act of discharge, although separate acts, were so closely related that they were a continuous course of conduct. The last act in this continuous course of conduct occurred on August 9, 1974, which was 90 days prior to November 7, 1974.

Because this Court has found these acts to be a continuous course of conduct and because the last of these acts occurred within 90 days from the date the complaint was filed, this Court concludes that the complaint was timely filed with the Commission. In such cases, the statute of limitations does not begin to run until the violation complained of ceases.

Federal cases under Title VII of the Civil Rights Act of 1964, 42 USC 2000(e) are regarded by Michigan courts as highly persuasive guidance in the application of civil rights statutes. 2 The "continuing violations” doctrine, as pronounced in United Air Lines, Inc v Evans, 431 US 553 ; 97 S Ct 1885 ; 52 L Ed 2d 571 (1977), and adopted in Delaware State College v Ricks, 449 US 250 ; 101 S Ct 498 ; 66 L Ed 2d 431 (1980), and Chardon v *553 Fernandez, 454 US 6 ; 102 S Ct 28 ; 70 L Ed 2d 6 (1981), provides that where an ongoing pattern of independent acts of discrimination is alleged, with only one of the allegedly discriminatory acts occurring within the statute of limitations period, the entire cause of action, including the acts outside the limitations period, will be deemed timely filed. That is, if the filing is timely as to the last act of alleged discrimination, it is timely as to the prior acts which would otherwise be outside the limitations period. For a continuing violation to exist, it is only required that the timely claims be so closely connected to the previous time-barred claims that the continuing nature of the discrimination is apparent.

Under Evans, supra, a plaintiff must prove a series of continuous violations constituting an organized scheme leading to a "present violation.” 431 US 558 . Since, in the instant case, the prior acts of racial harassment provoked the altercation, which culminated in Sumner’s discharge, the whole sequence of events was a continuous course of illegal conduct. The illegality of this conduct was heightened by evidence which indicated that over a ten-year period black workers involved in on-the-job altercations at Goodyear were discharged where their white counterparts were not. 3

CONCLUSION

The purpose of the Fair Employment Practices Act, MCL 423.301 et seq.; MSA 17.458(1) et seq., was, in pertinent part,_

*554 to promote and protect the welfare of the people of this state by prevention and elimination of discriminatory employment practices and policies based upon race, color, religion, national origin, sex, age, marital status, height, weight, certain law enforcement records, or ancestry; ... to provide for penalties and remedies; and for other purposes.

It is my conclusion that this language was intended to forestall the abusive and reprehensible activity engaged in by supervisors Grace and Bohnett. This preamble language was also intended to prohibit an employer’s failure to halt such activity once it has come to the employer’s attention.

In this case, the harassment was prolonged over a period of more than a year. Sumner had complained to upper management and union officials at the company, with no investigation by the company. This failure to investigate could easily be perceived as the company’s systematic approval of such harassment. Supervisors Grace and Bohnett’s prior acts of racial harassment provoked the altercation which culminated in Sumner’s discharge. The whole sequence of events constituted an organized scheme leading to the discharge. The discharge was the "present violation” under Evans, supra. An employer should not be allowed to claim the last act, the discharge, is legitimate when in fact, under the totality of the circumstances, the last act is utterly discriminatory.

Repealed March 31, 1977 by the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq.

Jenkins v American Red Cross, 141 Mich App 785, 793, n 2 ; 369 NW2d 223 (1985); Northville Public Schools v Civil Rights Comm, 118 Mich App 573, 576 ; 325 NW2d 497 (1982); Civil Rights Comm v Chrysler Corp, 80 Mich App 368, 375, n 4 ; 263 NW2d 376 (1977).

A study of Goodyear’s past disciplinary action imposed on white and black workers involved in on-the-job altercations over a ten-year period established that no white employee had ever been discharged for fighting the first time. Whereas, all black employees had been discharged for their first fight.