# Petition — Michigan Department of Mental Health v. Rasimas > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1190%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 466 U.S. 950 ## Text gs-1258 [~rr | NO. eseneeeerseses. In The SUPREME COURT OF THE UNITED STATES October Term, 1983 MICHIGAN DEPARTMENT OF MENTAL HEALTH, Petitioner, Vv DAVID L. RASIMAS, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FRANK J. KELLEY Attorney General Louis J. Caruso Solicitor General ‘George L. McCargar Craig Atchinson (P23953) Assistant Attorneys General i QUESTIONS PRESENTED FOR REVIEW I. Whether the decision by the Court of Appeals that respondent timely filed a charge of employment discrimination with the Equal Employment Opportunity Commis- sion is in direct conflict with Mohasco Corp v Silver, 447 US 807 (1980). A. Whether Mohasco Corp v Silver should be given retroactive effect. B. If Mohasco is not to be applied retroactively, Te the doctrine announced in Davis v Cal Corp, 627 F2d 674 (3rd Cir, | 1985) sho ld be applied retroactively and whether to do so conflicts with other decisions of the Court of Appeals applicable in 1975 and 1976 requiring that the charge of employment discrimination be. filed with the Michigan Civil Rights Commission or the EEOC within 180 days from the date of discharge. II. Whether the Court of Appeals has decided the question of discrimination in a way which is in conflict with Texas De of Community Affairs v Burdine, TI9 .5. Postal Service Board of Governors v Aikens, Us, 75 L gd ad, 403, 103 s ct 1478 (1583) by permitting a finding of discrimination to be affirmed court of s found that petitioner "inten y discriminated against" the ii TABLE OF CONTENTS Questions Presented for : Review > > > > > * * > > >. > . > — Index of Authorities .....s«.-. Opinion Below. > _ > > .* - > - — Jurisdiction — > >. * >. > > >. * >. > Statutes and Code Provisions Involved . > > > hl > > —_ > * > >. > Statement of the Case. .....- Reasons for Granting the Writ. * — >. — _ . >. >. o 7 > * > . I. The decision by the Court of Appeals that respondent timely filed a charge of employment discrimination with the Equal Employment Opportunity Commis- sion is in direct conflict with Mohasco Corp v Silver, 447 US Ger (aueee 2c ses 2 A. Mohasco Corp v Silver should be given retroactive effect > > _ >. _ > o > > > > B. If wopasce is not to in il 18 18 24 iii Page No. of the Court of Appeals applicable in 1975 and 1976 requiring that the charge of employment discrimination be filed with the Michigan Civil Rights Commission or the EEOC within 180 days from the date of discharge. .... .30 II. The Court of Appeals has decided the question of discri- crimination in a way which is in rt err Texas De ept of Community Affairs v e, | 730 US 248, 67 Led 22-207 (1981) and U.S. Postal Service Board of ) Governors Vv Aikens, us" tC £da 2d, 403-103 3 s tt” —_~{1983) by permitting a finding of discri- mination to be affirmed when neither the District Court nor the Court of Appeals found that peti- tioner “intentionally discriminated against" the respondent. .... .- .33 III. The decision of the Court of Appeals of the Sixth Circuit that unemployment benefits should not be deducted on back pay awards is in conflict with the decision of other federal Courts of Appeals. . . 37 Comneiusie® « wc: s ¢ bee. 6 0. + «12 bo iv INDEX OF AUTHORITIES Cases Page No. Boich v Federal Mines Safety and 702 F ealth Review Comm'n, 2a ’ 1983) . . . . . . . . . 39 Chevron Oil Co v Huson, 404 Us 5 ’ (Is71) . > >. > > > 7 > > >. . >. 26 Davis v Calgon Corp, 627 F2d 674 (CA 3, 8 eo. 6 © « 046,22,23,30,31 1 Employment 9p rtunity Comm'n Vv terprise As atic i's Steam Pitters Local 635, 542 F724 575 i. . 7 . . a . . . 39 Geromette v General Motors Corp, 1200 (6th cir, 157 me tere | | Grant v Bethlehem Steel C 622 F2d 43 (ond Cir, L' met Lime = re Hall v Ledex, Inc., 669 F2d Ye ££ ~ a > Jones v AIRCO Carbide Chemical Co, “651 F2d 1200 (eth Cir, 1982)... . 22 Merriweather v Hercules, Inc., 1 (5th Cir, 1580) .... 39 Mohasco Co v Silver, 447 US 807 TTB} « « «© 0215716,18,19,23,24,29 Moore v Sunbeam Corp, 459 F2d “SII (7th Cir, 1 ek MES ge eer wow Ae Olson v andt Prin Co, Sty 2a Tae (8th Cie Ta7 ee om banc) 2. 2-2 ee ee eee ewe 32 ‘nt bone eked >, - ae ee) AA eee Ps ™ soe. Page No. Rasinas v Michigan Dept of ental , No. ?7- 716 ED | Se =e 16, 1980) oA Ae.ie O62. Te @ 4 - 2 Rasimas v iad ¢ Dept of Mental “Foateh 7 th cir, 1983). . + + . + - 7 3,4,19,36,38,4l Texas oe S of Community Affairs “Gs0 us 248 (1981) -33,34,36 U.S. Postal Service Beare of ernors v Aikens, JU: a, TOs sce 78— (1983) . . . 7 . . _ oe ~ . . a . 33,34 Wiltshire v Standard Oil of Ornia, 652 Fea 837? (Sth , cert den 455 US 1034 CAGED 6 o selccee- ett @ o ote? ad Zapes v Trans World Airlines, Inc., 3 9 e ’ I ent Federation of Flight ingepenet v Trans World Air s, Inc., 456 us 940 (1582). ©. .3,18,21,24 Other 28 usc 1254(1). . . . . . - . 42 USC 2000e, et seq. .... 42 USC 2000e-2(a) (1). 42 USC 2000e-2(a) ...... 42 USC 2000e-S(e) . . 42 USC 2000e-5(c) ...... a : 4 vi 42 usc 2000e-5 (3g) ows ee 2 e @ 29 CFR § 1601.12(b) (1) (v) (A) (1975) en ee ew. Pe, One 29 CFR § 1601.74. a. eee” ee MCL 423.307(b)- - + +++? °* Si aS y NO. sccccces In The SUPREME COURT OF THE UNITED STATES October Term, 1983 MICHIGAN DEPARTMENT OF MENTAL HEALTH, Petitioner, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT OPINIONS BELOW Respondent Rasimas, a white male, claimed that he was discriminatorily discharge from his job with the Michigan Department of Mental Health because of his gender. He brought an action under Title VII of the Civil Rights Act of 1964, as amended, 42 USC 2000e, et seg. After trial, the United States District Court for the Eastern District of Michigan, > - = 2 Bax Eine - , RAN Oe ee er ati La * a PCT ee ee a ee 2 a2 Southern Division, the Honorable James Harvey presiding, rendered a memorandum opinion and order and judgment dismissing the case. David L. Rasimas v Michigan Dept of Mental Health, No. 77-71697 (ED Mich, Sept. 16, 1980). The Court found that David L. Rasimas did not timely file a charge of employment discrimination with the Equal Employment Opportunity Commission. Mohasco Corp v Silver, 447 US 807 (1980). The Court also found that Rasimas' discharge on July 15, 1975 was the product of illegal discrimination based upon his sex. 42 USC 2000e-2(a) (1). Purther, the Court found that Rasimas failed to make reasonably diligent efforts to obtain other employment to mitigate his damages. David L. Rasimas appealed from | the order of the district court on the 2 question of timeliness and mitigation of damages. Michi... vepartment of Mental -3- : Health filed a cross appeal on the issue of discrimination. In Rasimas v Michigan Dept of Mental Health, 714 F2d 614 (6th Cir, 1983), a majority of the Court affirmed the sex discrimination finding but reversed the timeliness and miti- gation of damages determinations. Since the District Court never fully addressed the back pay issue, the Court of Appeals remanded the action to the District Court for further proceedings. On remand the District Court was to award back pay in accordance with various guidelines out- lined by the Court. Senior District Judge Hoffman concurred in part and dissented in part. He would have vacated and remanded the case to permit the lower court to make specific findings and # conclusions in light of Zipes v Trans World Airlines, Inc., 455 US 385 (1982), reh'g denied, Independent Federation of Flight Attendants v Trans World Airlines, Inc., 456 US 940 (1982). Further, he im Si. ss “ 7 tied oe bin A eee at. Td eee ~~ would have remanded the case for addi- tional findings as to the existence of intentional discrimination. As to miti- gation of damages, whether unemployment insurance benefits should be deducted from an award of back pay should be left to the sound discretion of the trial judge. Michigan Department of Mental Health filed a petition for rehearing on November 2, 1983. The rehearing was denied. Rasimas v Michigan Dept of Mental Health, 714 F2d 614 (6th Cir, reh'g denied, November 2, 1983). -5- JURISDICTION Petitioner seeks review of the Court of Appeals opinion decided and filed July 28, 1983 and order denying rehearing filed November 2, 1983. This Court's jurisdiction is invoked under 28 usc 1254(1). STATUTES AND CODE PROVISIONS INVOLVED 42 USC 2000e-2(a) states: "(a) It shall be an unlawful employment practice for an employer-- "(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges or employment, because of such individual's race, color, religion, sex, or national origin; or "(2) to limit, segregate, or classify his employees applicants for nirptiome + -6- status as an employee, because of such individual's race, color, religion, sex, or national origin." 42 USC 2000e5(c) states: "(c) State or local proceedings. In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection (a)[(b)] by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated, provided that such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of such State or local law. If any requirement for the commencement cf such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the yen Je proceeding shall be deemed to have been commenced for the purpose of this subsection at the time such statement is sent by registered mail to the appropriate State or local authority." 42 USC 2000e-5(e) states: "“(e) Time for filing charges. A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employ- ment practice occurred and notice of the charge (in- cluding the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceed- ings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof such charge shall be filed by or on behalf . of the person aggrieved within ; three hundred days after the ; alleged unlawful employment Ps practice occurred, or within P thirty days after receiving notice that the State or local i agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commis- sion with the State or local agency." 42 USC 2000e-5(g) states: "(g) If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employ- ment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment prac- tice), or any other equitable relief as the court deems appropriate. Back pay liabi- lity shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence the person or persons discri- minated against shall operate to reduce the back pay other- wise allowable. No order of the court shall require the admission or reinstatement of an individual as a member of a Y 7a Ee union, or the hiring, re- instatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, sus- pended, or expelled, or was refused employment or advance- ment Or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of section 2000e- 3(a) of this title." 29 CFR § 1601.12(b) (1) (v) (A) (1975) states: "In cases where the document is submitted to the Commission | more than 180 days from the date of the alleged violation but within the period of limitation of the particular 706 Agency, the case shall be deferred pursuant to the procedures set forth above: Provided That unless the Conni sete te eariies notified of the termination of the State or local proceedings, the Commission will consider the ameye to be filed with Gey Soltenag taeteel y fo discrimination and will com- mence processing the case. Where the State or local agency terminates its pro- ceedings prior to the 300th -10- day following the alleged act of discrimination, without notification to the Commission of such termination, the Commission will’ consider the charge to be filed with the Commission on the date the person making the charge was notified of the termination." MCL 423.307(b) states: "(b) 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 discri- mination, a verified complaint in writing, which shall state the name and address of the person, employer, labor organi- zation or employment agency alleged to have committed the unlawful employment practice complained of, and which shall set forth the particulars thereof and contain such other information as may be required by the board. Any employer whose employees, or some of whom, refuse or threaten to refuse to cooperate with the provisions of this act, may file with the board a verified complaint asking for assistance by conciliation or other remedial action." stile STATEMENT OF THE CASE Respondent, David Rasimas, is a white male(1)2 who, on May 18, 1975 was employed by the Michigan Department of Mental Health as a Mental Retardation Program Supervisor 10 at the Macomb- Oakland Regional Center (MORC).(6) He was hired on the recommendation of two women, Jan Nagy and Caron Bender~-Swietec. (10) His responsibilities included working with children who are mentally retarded and developmentally disabled and supervising staff personnel who also carry out the therapeutic program being provided to the children.(12) He super- vised women and his two immediate super- visors were women (Nagy and Swietec). (7 &. 8) lReferences are to numbered para- graphs in the Memorandum Opinion and Order of the District Court, September 16, 1980, under "Findings of Pact." -12- On July 15, 1975, he was terminated for unsatisfactory service. The ultimate decision to terminate him was made by a male. Factors leading to that conclusion included his failure to maintain good relationships with his staff, his failure to satisfactorily implement supervisory directives, his failure to take adequate precautions for the health and safety of the resident-patients under his super- vision, and his failure to make adequate progress in developing the skills neces- sary in his position. (35) The incident which precipitated his termination occurred on July 12, 1975 when the respondent and three staff members took four resident patients to Belle Isle in a van. During the course _Of the trip, one of the children began to vomit, had seizures, was trembling, had incipient cyanosis about the edges of her mouth and repeated vomitting. In Z -13- spite of the child's condition, respon- dent as supervisor, continued the trip. (29 & 30) On July 28, 1975, respondent filed a grievance procedure form with the Michi- gan Civil Service Commission.(39) The Civil Service Hearing Officer found that plaintiff was removed from his position for good cause, but rather than the discipline of termination, plaintiff should be reinstated and demoted to the position of Activities Training Aide 05 (a position he had held at Northville State Hospital from August 13, 1972 until being hired at MORC) and placed on a layoff register until an opening arose at that position.(41) When respondent was notified of an impending opening in the ) position of Activities Training Aide 05, x respondent declined the interview. (45 & a 48) | - -14- On March 16, 1976, respondent went to the Office of the Michigan Department of Civil Rights and to an office of the Federal Equal Employment Opportunity Commission where he signed an affidavit complaining of his dismissal from Macomb- Oakland Regional Center.(52-53) Res- pondent received a notice of right to sue within 90 days from the EEOC on April 12, 1977(57) and then filed an action in the United States District Court for the Eastern District of Michigan on July ll, 1977, claiming that he was discrimina- torily discharged from his job with the Michigan Department of Mental Health on account of his sex in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 USC 2000e, et seq. After a trial that concluded on September 3, 1980, the District Court issued a memorandum opinion and order and judgment whereby it followed Mohasco v > — “ ea @1 $. -16- in part and dissenting in part, delivered its opinion which in relevant part re- ‘ fused to apply Mohasco v Silver, supra, to the case at bar saying it should not be applied retroactively. However, the Sixth Circuit did apply Davis v Calgon Corp, 627 F2d 674 (CA 3, 1980), cert den 449 US 1101 (1981) retroactively and concluded that respondent did timely file a charge of employment discrimination with EEOC. Second, a majority of the Court of Appeals affirmed the sex discri- mination finding of the District Court | without finding petitioner intentionally , discriminated against respondent. Third, the Court of Appeals reversed the finding of the District Court that respondent 5 failed to mitigate his damages. Fourth, the Court remanded the case to the Dis- trict Court for further proceedings saying that the Court should award back pay in accordance with certain guidelines Ted wa , TY 3. @lJeo which, inter alia, required that back pay not be reduced by the amount of unemploy- ment benefits received by claimant. On August 10, 1983, petitioner filed a petition for rehearing with the Court of Appeals which was denied on November 2, 1983. Petitioner seeks review of the Court of Appeals opinion decided and filed July 28, 1983 and the denial of rehearing filed November 2, 1983. REASONS FOR GRANTING THE WRIT I. THE DECISION BY THE COURT OF APPEALS THAT RESPONDENT TIMELY FILED A CHARGE OF EMPLOYMENT DISCRIMINATION WITH THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION IS IN DIRECT CONFLICT WITH MOHASCO CORP v SILVER, 447 US 807 (1980) The Court of Appeals correctly summarized the applicable law relating to the requirement that a charge of employment discrimination be timely filed with the Equal Employment Oppor- tunity Commission (EEOC) as follows: "The timely filing of a com- plaint with the EEOC is a procedural prerequisite to the enforcement of a Title VII action in federal court. This requirement, however, is not jurisdictional, rather it is in the nature of a statute of limitations. See Zipes v. Trans World Airlines, iInc., eWe 5 ’ r denied, Independent Federation 3 [rl Sst Ue r : s ‘ ef a - 340 (1582). A charge of discrimination should be filed with the EEOC within 180 days -19- after the last discriminatory act. 42 U.S.C. § 2000e-5(e). However, in deferral states, states with fair employment agencies, claimants must file charges with the state agency before pursing their claims with the EEOC. 42 U.S.C. §2000e-5(c). The EEOC will not formally file charges it has received until after the state agency has terminated its proceedings or sixty days have elapsed, whichever occurs earlier. Mohasco Corp. v. Silver, 447 U.S. 8 1980}. In deferral states all con- plaints must be filed with the EEOC within 300 days after the act of discrimination or within thirty days after receiving notice that the state has ter- minated its proceedings. 42 U.S.C. §2000e-5(e)." Footnotes deleted. Rasimas v Michigan pert of Mental Health, 714 F2d The case at bar is factually indis- tinguishable from Mohasco Corp v Silver, supra, insofar as the question of whether respondent timely filed a charge of employment discrimination with the Equal Employment Opportunity Commission. In Mohasco, the employee was dis- E- charged on August 29, 1975. On June 15, Pear: > te: Aa NaS ys Z a ae ae Bie ee Rae De no pet LN “4 See -20- 1976 -- 291 days later -- the employee ; submitted a charge of discrimination to the EEOC. Because New York was a deferral state under 29 CFR§1601.74 and 42 USC § 2000e5(c) requires EEOC to defer to the 4 v state agency for 60 days, the charge submitted on June 15, 1976, had to be held in abeyance for 60 days before a filing of the charge with EEOC could be effected. Under these circumstances, Mohasco says that the employee cannot effect a filing of a charge with EEOC within 300 days as required by 42 USC § 2000e-S(e) -- 291 days plus 60 days equals 351 days. This Court thus found the charge was not timely filed with EEOC. In the case at bar, the employee was discharged on July 15, 1975. On March 16, 1976 -- 244 days later -- the em- ployee submitted a charge of discrimina- tion to the EEOC. Because Michigan, a2l@ like New York, is a deferral state, 29 CFR §1601.74, and 42 USC § 2000e5(c) requires EEOC to defer to the state agency for 60 days, the charge submitted on March 16, 1976, had to be held in abeyance for 60 days before a filing of the charge with EEOC could be effected. Under these circumstances, employee Rasimas, like the employee in Mohasco, cannot file a charge with EEOC within 300 days as required by 42 USC § 2000e- 5(e) -- 244 days plus 60 days equals 304 days.” Although the Court of Appeals did not deny that Rasimas was factually indistinguishable from Mohasco, it did 2rhe District Court found that respondent alleged no facts which would justify the tolling of the 300-day period on equitable grounds -- see Memorandum Opinion, Conclusion of Law, paragraph 2 -- and thus Zipes v Trans World Airlines, Inc., supra, is not applicable. -22- refuse to apply Mohasco retroactively to the case at bar relying on Wiltshire v Standard Oil of California, 652 F2d 837 (9th Cir, 1981), cert den 455 US 1034 (1982); Hall v Ledex, Inc., 669 F2d 397, 399 (6th Cir, 1982); and Jones v AIRCO Carbide Chemical Co, 691 F2d 1200 (6th Cir, 1982). Nonetheless, the Court of Appeals did apply decisions of various other Courts of Appeals retroactively to the case at bar such as Davis v Calgon Corp, 627 F2d 674 (3rd Cir, 1980), cert den 449 US 1101 (1981) and concluded that respondent was not required to file a charge of discrimination within the State statute of limitations applicable to the deferral agency. At the time respondent was termi- nated, in order for him to receive the benefit of the 300-day time limitation rather than the 180 day limitation, he | aimee Be a te he $A fa a AP ie. Te ae ee ee CCC ' has extended the statutory time limita- =23- was required to timely file his charge of employment discrimination with the state deferral agency. Rasimas did not do that. Rasimas filed 244 days after he was terminated. At the time, Michigan law required that a charge of discri- mination be filed within 90 days of the discriminatory act. MCL 423.307(b). The Court of Appeals, however, has applied Davis v Calgon Corp, supra, retroactively but has not applied Mohasco Corp v Silver, supra, retroactively. Petitioner submits that the applicable law must either be that which was in existence on July 15, 1975, the date of respondent's termination or that which was in existence at the time Mohasco Corp v Silver, supra, was decided by this Court. In essence, the Court of Appeals tions for filing a charge of employment discrimination imposed by Congress and =24@ upheld by this Court. In doing so the Court of Appeals has failed to give effect to the congressional intent requiring the prompt processing of all charges of employment discrimination. A. MOHASCO CORP v SILVER SHOULD BE RETROACTIVE EFFECT As noted by Senior District Judge Hoffman, this Court, in essence, has already concluded that Mohasco should be applied retroactively. This Court de- cided Zipes v Trans World Airlines, Inc., 455 US 385 (1982) subsequent to Mohasco and at no point did the Court suggest that Mohasco should be applied pros- pectively only. The employees in Zipes were discharged in 1970 long before the discharge of the employee in Mohasco or the employee in the case at bar. -25- Petitioner submits that Mohasco should be applied to the case at bar. Rasimas was discharged less than one and one half months before Silver. Before trial in Rasimas, the Mohasco decision was rendered by this Court. Merely because Mohasco reached this Court be- fore Rasimas does not constitute suffi- cient reason to preclude giving effect to a statutory requirement that a charge of employment discrimination be filed in a timely and expeditious manner. This is not a situation similar to most questions dealing with retroactivity involving judicial interpretation of constitutional guarantees. This Court has not changed its interpretation of a constitutional provision by rendering its decision in Mohasco. This Court in Mohasco reviewed the intent of Congress and concluded that 4 it was incumbent upon the Court to give effect to that intent. The Court of -26- Appeals cannot circumvent that intent by extending those time limitations. | The test for determining whether a judicial decision should be given retro- active effect has been set forth in Chevron Oil Co v Huson, 404 US 97 (1971) where it was said: "In our cases dealing with the nonretroactivity question, we have generally considered three separate factors. First, the decision to be applied nonretro~ actively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied ..., or by deciding an issue of first impression whose resolution was not clearly foreshadowed .... Second, it has been stressed that ‘we must «++ weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retro- spective operation will further ‘ or retard its operation.’ ... Pinaly, we have weighed the inequity imposed by retroactive application, for '[w]here a decision of this Court could produce substantial inequitable results if pare retroactively, (there is ample basis in our e Fé ae ae ia a a Es ot Ne eee o2}= cases for avoiding the "in- justice or hardship" by a holding of nonretroactivity.'" As in the case at bar, petitioner submits none of the above criteria re- quire or condone the ruling of the Sixth Circuit in not following Mohasco. First, as was pointed out in Wilt- shire, supra, this Court in Mohasco discussed the conflicting approaches taken by the Seventh, Eighth and Tenth Circuits on the filing requirement challenged. Moore v Sunbeam Corp, 459 F2d 811 (7th Cir, 1972) was in accord with the timeliness requirements arti- culated in Mohasco Corp v Silver. A decision of the Seventh Circuit fore- shadowed the decision in Mohasco as well as did a literal reading of the statutory provision in question. ; Second, giving retroactive effect to Mohasco achieved the purpose and effect of the time limitations imposed by -28- Congress, to wit: the encouragement of the prompt processing of all charges of employment discrimination. Furthermore, contrary to what Wiltshire v Standard Oil Co of Cal, supra, stated, EEOC had not "for fifteen years, steadfastly main- tained one consistent interpretation of the rule, viz., that the EEOC will consi- der as timely all complaints filed with the agency within 300 days of the discri- minatory event." EEOC had required charges of employment discrimination be filed “within the period of limitation of the particular 706 Agency” before the Claimant would be entitled to the 300-day limitation period as opposed to the 180- day limitation period. See 29 CFR § 1601.12(1) (V) (a) (1975) where it is stated: "'In cases where the document is submitted to the Commission more than 180 days from the date of the aiieged violation but within the period of limitation of the rticular 706 Agency, ti. cule chalt be Sefarcel ~... Provided, however, that unless the Commission is earlier notified of the termination of the State or local proceeding, the Commission will consider the charge to be filed with the Commission on the 300th day following the alleged discri- mination and will commence processing the case." (Empha- sis supplied). Third, as to whether equitable re- ‘sults from the retroactive application of Mohasco are evident, it is significant to note that this Court believed that a lay person was more apt to regard the statute as establishing a 180-day filing deadline. Mohasco, 447 US at 825. Furthermore, EEOC has also indicated that for there to be a timely filing with EEOC under the 300-day period, the claimant would have to file within the time limitations of the state agency. Respondent Rasimas did not file within the time limitations of the state deferral agency. Rasimas was not diligent -30- in filing his charges of discrimination. It is equitable under these circumstances to give effect to Congress' intent that such charges be processed without delay. For the foregoing reasons, Mohasco should be applied to the case at bar. IF MOHASCO IS NOT TO BE APPLIED RETRO- ACTIVELY, THE DOCTRINE ANNOUNCED IN DAVIS v CALGON CORP, 627 F2d 674 (3rd Cir, 1980) SHOULD NOT BE APPLIED RETROACTIVELY AND TO DO OTHERWISE, AS THE SIXTH CIRCUIT COURT OF APPEALS HAS DONE, IS IN CONFLICT WITH OTHER DECISIONS OF THE COURT OF APPEALS APPLICABLE IN 1975 AND 1976 REQUIRING THAT THE CHARGE OF EMPLOYMENT DISCRIMINATION BE FILED WITH THE MICHIGAN CIVIL RIGHTS COMMISSION OR THE EEOC WITHIN 180 DAYS FROM THE DATE OF DISCHARGE Assuming the Court of Appeals was correct in not applying Mohasco to the case at bar, the opinion of the Court of y Appeals filed on July 28, 1983 overlooks 7 and misapprehends the law as it existed in 1975 and 1976 with regard to filing a charge of employment discrimination on a . > ae in (ihe, Ag - =3l- timely basis. If Mohasco does not apply, the laws that existed at the time res- pondent filed his charge of employment discrimination in 1976 rather than the doctrine announced 4 years later in Davis v Calgon Corp, 627 F2d 674 (3rd, Cir, 1980) should apply. In 1975 and 1976, under Michigan as well as federal law, a charge of employment discrimi- nation had to be filed either with the Michigan Civil Rights Commission or with the EEOC within 180 days from the date of the employee's discharge. See Geromette v General Motors Corp, 609 F2d 1200 (6th Cir, 1979) relying on Olson v Rembrandt Printing Co, 511 F2d 1228 (8th Cir, 1975 en banc). Respondent in the case at bar did not file his charge of employment discrimination within the state time limitations or within the 180-day limi- tations set forth in Title VII. Only beginning in 1980 are there a series of -32- cases in which the various Courts of Appeals state that the 180-day require- ment of Title VII does not apply to a deferral state. Those cases should, applying the reasoning of Wiltshire, not be applied retroactively. Accordingly, the charge of employment discrimination © filed by the plaintiff on March 16, 1976, some 244 days after his termination, was not timely by virtue of the law as it existed in 1975 and 1976. Furthermore, although the Court of Appeals opined that “the EEOC's position is entitled to great deference," the opinion rendered by the Court fails to give their position great deference since the rules of EEOC required prior to Mohasco Corp that a charge of employment discrimination was timely filed if and *; only if the filing with the state agency was made in accordance with the time limitations set forth by the deferral -33- state agency. 29 CFR § 1601.12(b) (1) (V) (a) (1975). Again, the Court will recall that the plaintiff in the case at bar did not file within the period of limitation of the Michigan Department of Civil Rights. II. THE COURT OF APPEALS HAS DECIDED THE QUESTION OF DISCRIMINATION IN A WAY WHICH IS IN CONFLICT WITH eC ge mg gE 450 us ow (1981) AND U8. on? ee ee ’ ef > 403, 103 S CT 475 -TL 9837 BY PER- MITTING A FINDING OF DISCRIMINATION TO BE AFFIRMED WHEN NEITHER THE DISTRICT COURT NOR THE COURT OF APPEALS FOUND THAT PETITIONER “INTENTIONALLY DISCRIMINATED AGAINST" THE RESPONDENT The trial court found that respon- dent's discharge was the product of illegal discrimination based upon his sex. a That finding was affirmed by the Court of Appeals. However, neither the District Court or the Court of Appeals made any finding that petitioner “intentionally -34- discriminated" against the respondent. "The ‘factual inquiry’ in a Title VII case is ‘whether the defendant intentionally discri- mination against the plaintiff.'" U.S. Postal Service Bd of Governors v Aikens, Us 75 L Bd 24 403, 103 5 Ct 1a78 (1983). There is no indication in the de- cision of the Court cf Appeals that the Court followed the criteria as set forth in Texas Dept of Community Affairs v Burdine, 450 US 248, 256 (1981). "The plaintiff retains the burden of persuasion. She now must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimi- nation. She may succeed in this either directly by per- suading the court that a discri- minatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation See . McDonnell , 411 US, at 804-805, 36 L Ed 2a were 93 s ct 1817." a . ‘ tw a 7 f 7 é a Me Mad eS ee Fume > . ~ ) eames Whether unemployment benefits should be deducted from an award of back pay, if an award of back pay is ultimately granted, should be left to the sound discretion of the trial court. The ruling by the Court of Appeals has pre- cluded the exercise of that discretion. The decision in this regard is in con- flict with the decisions of the Courts of Appeals of the Second Circuit, Seventh Circuit, the Fifth Circuit and of other panels of the Sixth Circuit. "This Court finds that de- ductions for unemployment compensation benefits avoids any possibility of a double payment to a plaintiff, and, in any case, such a decision is within the discretion wis the trial judge. See Satt Nashville Gas Co., F24 850, Cir, 1575), aff'd in part gna t and oyngates in part, 434 36, | 3S ct 347, L Ed 24 356 (1979) 3 Bowe v Colgate- Palmolive Co., 416 Foa-711, 721 , 1969)." Merriweather v Hercules, Inc., 631 Fad 1llel, 1168 (5th cir, 1980). See also, Grant v Bethlehem Steel Corp, 622 F2d 43, 47 (2nd Cir, 1980) and Boich v Federal Mines Safety and Health Review Comm'n, 704 F2d 275, 287 (6th Cir, 1983). Compare Equal Employment Oppor- tunity Comm'n v Enterprise Association's Steam Fitters Local 638, 542 F2d 579, 591- 92 (2nd Cir, 1976), cert den 430 US 911, 97 S Ct 1186, 51 L Ed 2d 588 (1976) where the reasons for allowing deductions from a back pay award were enunciated. Those reasons can be summarized as follows: (1) Where the contributions to the fund from -40- which the benefits derive are made solely by the defendant, the collateral source rule does not apply; (2) the plaintiff would otherwise receive a double recovery; (3) the defendant would otherwise in effect be subjected to punitive damages. Petitioner notes that in the case at bar, petitioner is the Michigan Department of Mental Health, or in other words, the State of Michigan itself. By virtue of : the ruling of the Court of Appeals in the case at bar, the petitioner may be re- quired to pay unemployment compensation benefits and general assistance benefits in addition to back pay. The State under such circumstance is being subjected to punitive damages while the respondent receives a double recovery. As was stated by Senior District i. Judge Hoffman in his dissent in the case at bar: ‘ai * =4) >a Tu b, § District Court Opinion 23a 42.) Pursuant to the Hearing Offi- cer's recommendation, administrative action was taken to reinstate, demote, and lay off plaintiff. This was essen- tially a paperwork transaction and plaintiff was not given notice of it, aside from the Hearing Officer's recom- mendation and the Civil Service Commis- sion's decision. (Testimony of McDonald, Exhibit #1) 43.) Upon appeal of the Hearing Officer's decision to Step 5, the Michi- gan Civil Service Commission met and heard oral argument by John Pouch, re- presenting the Michigan Department of Mental Health, and Philip Helms, a Staff Representative from AFSCME Council ll, representing plaintiff. On March 18, 1977, based upon this hearing, the Com- mission affirmed the Hearing Officer's .. decision and adopted his recommendation. *% (Exhibit #5) . 24a District Court Opinion 44.) No representations were made to plaintiff by members of the Michigan , Civil Service Commission regarding when his termination would be deemed "final." (Testimony of Rasimas) D. Mitigation of Damages 45.) By letter dated April 20, 1976, Swietec requested that plaintiff report for an interview for a position as an Activities Training Aid 05. There was an impending opening at that position at MORC, and according to Civil Service rules, the position had to be offered to the plaintiff, as long as he was on the lay-off register, before a new employee could be hired to fill it. (Testimony of McDonald and Rasimas; Exhibit 1, p 3) 46.) No opening was available at MORC for an Activities Training Aid 05 between February 6, 1976, and April 30, ‘ 1976. (Testimony of McDonald) District Court Opinion 25a 47.) The letter plaintiff received was a standard form letter requesting an interview, and did not inform him of the actual availability of the position, nor of plaintiff's right of first refusal regarding the position. (Testimony of McDonald and Rasimas) 48.) By letter dated April 30, 1976, plaintiff declined the interview, citing as his reason the pendency of his com- plaint against MORC for dismissing him. (Exhibit #1, p 3) 49.) Subsequent to April 30, 1976, the plaintiff has received no offer of employment, although he continues to interview and seek other employment in both the governmental and private sectors. i He remains unemployed and dependent upon public assistance, to this date. (Testi- i mony of Rasimas) a 50.) If plaintiff had retained his ve job as a Supervisor 10 from July 15, ol - cg 26a District Court Opinion 1975, to date, he would have earned $81,173.12. (Stipulated Fact) ° 51.) Had plaintiff accepted the available position of Activities Training Aid 05, as of April 30, 1976, and conti- nued in that position to date, he would have earned $54,249.36. (Testimony of McDonald, Exhibit #31) E. Plaintiff's Civil Rights Charges 52.) On March 16, 1976, while his Civil Service grievance was still pend- ing, plaintiff went to an office of the Michigan Department of Civil Rights (MDCR), where he filled out a preliminary informational form, and met with a repre- sentative of the Department to discuss filing a civil rights complaint against MORC for his dismissal. (Testimony of Rasimas; its #20 and #21) , 53.) By on March 16, 1976, plain- tiff went to an Office of the Federal Equal Employment Opportunity Commission 4 ee ee District Court Opinion 27a (EEOC) where he signed an affidavit complaining of his dismissal from MORC. The next day a formal charge was typed out and signed by plaintiff. (Testimony of Rasimas; Exhibits #18 and #19) 54.) A formal complaint was typed out by the MDCR, and on June 23, 1976, the complaint was signed by the plaintiff and notarized. (Exhibit #23) 55.) Plaintiff is aware of no fur- ther action taken by the MDCR in this matter. (Testimony of Rasimas) 56.) On June 7, 1976, the EEOC commenced investigation of plaintiff's charge, and on April 7, 1977, the EEOC issued a Notice of Right to Sue Within 90 days. (Exhibit #6) 57.) Plaintiff received his Right- to-Sue letter on April 12, 1977. (Testi- mony of Rasimas; Exhibit #25) 58.) Plaintiff filed an action in | the United States District Court for the ef 28a District Court Opinion Eastern District of Michigan on July ll, 1977. (Plaintiff's Complaint) CONCLUSIONS OF LAW 1.) Michigan is a deferral state, 29 CFR 1601.74, and therefore a prerequi- site for filing a Title VII action in this case was the filing of a charge with the EEOC within 300 days after the alleged unlawful employment practice occurred. 42 USC 2000e-5(e). Mohasco Corp v Silver, 48 LW 4851 (Supreme Court, June 23, 1980); Alexander v Gardner-Denver Co, 415 US 36, 47 (1974). 2.) The date upon which the alleged unlawful employment practice occurred was July 15, 1975, for the purposes of com- mencing the running of the 300-day “i period. 42 USC 2000e-5(e). The alleged unlawful action was the discharge itself, ; which was accomplished in one day. “ Bonham v Dresser Industries Inc, 569 F2d “4 District Court Opinion 29a 187, 191-92 (CA 3, 1977), cert denied 439 . US 821 (1979). No continuing violation has been shown to exist. United Air Lines Inc v Evans, 431 US 553, 558 29TH) 9 Geromette v General Motors Corp, 609 F2d 1200, 1203 (1979). Although plaintiff has argued strenuously that plaintiff's discharge was not final for purposes of commencing the 300-day limitation period, until he had exhausted his remedies under the Michigan Civil Service grievance procedures by obtaining a final determi- nation at the Step 5 level, nontheless the Court must decline to accept this view of the law. The Court finds the instant case to be factually indistin- guishable from the cases of International Union of Electrical Radio & Machine Workers AFL-CIO Local 790 v Robbins & i t Myers Inc, 429 US 229 (1976), and Everson v McLouth Steel Corp, 586 F2d 6 (CA 6, a 1978). The case cited by plaintiff in a 30a District Court Opinion support of his position on this issue, Bethel v Jefferson, 589 F2d 631 (CA DC, 4 1978), appears to the Court to rest on factual considerations not present in the instant case. Further, plaintiff has alleged no facts which would justify the tolling of the 300-day period on equit- able grounds. Cf, Leake v University of Cincinnati, 605 F2d 255 (CA 6, 1979); Fox v Eaton Corp, 615 F2d 716 (CA 6, 1980). 3.) The 300-day period which com- menced on July 15, 1975, expired on May 10, 1976. Although plaintiff had initi- ated contact with the EEOC on March 16, 1 The Court in Bethel found that, "(w) hile board's recommendation was under review by the Mayor, Bethel remained suspended but still a member of the Porce." 589 F2d at 635. Purther, it was : there found that "(a)ppellants challenge as discriminatory not only the incidents antedating the convening of the trial 4 boards but also the trial board proceed- Re E precipitated by the earlier incidents." District Court Opinion 3la 1976, no filing which would be effective for purposes of the 300-day limitation could have occurred prior to May 15, 1976, when the 60-day period during which the civil rights charge was deferred to the Michigan Department of Civil Rights, terminated. 42 USC 2000e-5(c); Mohasco Corp v Silver, supra. Therefore, the plaintiff has not made a timely filing with the EEOC and his claim under Title VII is barred. 4.) Except as noted above, this case comes within the original juris- diction of this Court. 42 USC 2000e- 5 (FP) (3) 2rhe issue of timely filing with the EEOC was not raised until immediately prior to trial, and the Court also noted that this area of the law is one in which substantial unsettling changes have recently occurred (see e.g., Mohasco v Silver, supra). Therefore, it was de- c to proceed to trial and to make as complete a record es possible in the event of an appeal. he on”. female, his predecessor was female, his immediate supervisor was female, and her immediate supervisor was also female; 32a District Court Opinion 5.) The provisions of 42 USC 2000e- 2(a)(1) prohibiting discrimination in . employment based upon the employees’ sex apply with equal force and on the same terms to discrimination against white males as they do to discrimination against women or ethnic minorities. Hicks v ABT AssOciates Inc, 572 F2d 960 (CA 3, 1978); Diaz v Pan American World Airways Inc, 442 F2d 385 (CA 5, 1971). 6.) Plaintiff has established a prima facie case of sexual discrimination by showing that: a) he was employed by the defendant after having been initially found to be qualified for the position of Supervisor 10; b) plaintiff was a male in an environment where his staff was all District Court Opinion 33a c) plaintiff was discharged from his position; and ad) after plaintiff's discharge, defendant sought and hired a replacement for plaintiff, and the replacement also was female. McDonnell Douglas Corp v Green, 411 US 792, 802 (1973). Although the exact elements of the prima facie case under Title VII were described somewhat differ- ently in the McDonnell Douglas case,? the 3~he exact terms of the McDonnell Douglas test are as follows: "({i) that Tplaintite 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 licants from persons of complainant's saa ouh tants 5, $14 us 34a District Court Opinion Court there expressly recognized that: "The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from res- pondent is not necessarily applicable in every respect to differing fact situations." Id, at 802, n. 13 The purpose of the prima facie case established by McDonnell Douglas is simply to require that the plaintiff carry the burden initially of: | "showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were ‘based on a dis- criminatory criterion illegal under the Act.’ 421 US at 358" Furnco Construction Corp v Waters, 430 567, 576 78). a Because cases under Title VII, in _-—s which the claim is disparate treatment of an individual, require an inherently _—s« A fFicult assessment of individual moti- District Court Opinion 35a defendant does not unabashedly admit bigotry), the courts have allowed plain- tiffs to benefit from circumstantial evidence, by indulging in a presumption that adverse treatment of a member of a disadvantaged minority is the product of an illegel distriminatory motive, where no objectively verifiable legitimate motive can be shown. This presumption, in the case of Blacks, Hispanics, and other economically disadvantaged ethnic minorities who have historically been victims of oppression by dominant major- ity ethnic groupds, or in the case of women , who, at least in some spheres, have historically been denied oppor- tunities available to men, is rationally A defensible, and understandable in common- f ‘ sense terms. However, in the case ofa 4 | white male, not a member of any readily «ss ‘ : _— balk at ; a , may ph g > ; ;* hn 1-4 2 + 4 z ; Py ‘ - * : J i S ets fis ; Pt ry ee ® Tre %, "is 36a District Court Opinion treatment of him is the result of an illegal discriminatory motive, even where . that treatment is at the hands of the Opposite sex, and even where there is no objectively verifiable legitimate moti- vation. Simply put, the difficulty is this: why should anyone presume that women would treat a man less favorably than another woman? The historical context of discrimination of this sort is not as readily apparent as that of dis- crimination against Blacks or women. | Nonetheless, the Court deems that an ‘ inference of sexual discrimination can be “i ‘iiiak tii the facts constituting the : prima facie case Seeceteet above. The same sexual role stereotypes that have caused women to be channeled either away | io _ from the job marketplace altogether, or 4 District Court Opinion 37a are stereotypically expected to be sex- ually passive or submissive, men are, according to stereotypes, expected to be agressive and dominant. Further, as women are sterotypically expected to be less suited to the business world and more suited to domestic roles, similarly men are stereotypically expected to be better in business related roles and less suited for domestic roles. In other words, hypothetically, a soit reacting toa man in a stereotypical manner would be more inclined to view him as insensi- tive to children than she would viewing another woman in the same circumstances. ¥ Based upon the evidence adduced at trial, the Court believes that the plain- y tiff in this case was victimized by a exactly such a stereotypical view. = y 7.) Defendants have “articulate(d) ; some legitimate, non-discriminatory de <> 38a District Court Opinion Purnco Construction Corp v Waters, supra. They have adduced evidence tend- ing to support four major criticisms of plaintiff's performance: (a) he failed to maintain good relationships with his staff; (b) he failed to satisfactorily implement supervisory directives; (c) he failed to take adequate precautions for the health and safety of the resident-patients under his super- vision; and (ad) he failed to make adequate progress in developing the skills neces- v. sary in his position. i 8.) Plaintiff has successfully ’ rebutted the presumption that these “a articulated reasons for his dismissal a were the actual reasons, by discrediting ” | them by reference to the facts. x All of the four major reasons arti- : Be TEE te whe it were ye ‘ , Pees - PES ‘z . ae 4 . 7 “S - : “~~ « . —- ” ‘ District Court Opinion 39a subject of the counselling memo dated July 1, 1975. Swietec, Nagy and McDonald all testified that at that point in time there were not adequate grounds for dismissing the plaintiff. Yet within 15 days of that date, all three had changed their minds and decided that plaintiff should be dismissed. The Court can find only one event which reasonably could be supposed to have effected such a significant change. That event was the Belle Isle trip which immediately preceded plaintiff's dis- missal. Based upon its review of the evidence the Court must conclude that the events relating to the Belle Isle trip of July 12, 1975, could only constitute a pretext for eons as yet undisclosed reason for plaintiff's dismissal. . Briefly summarized, the only charge which could be laid against plaintiff, based upon the Belle Isle incident, was that he 40a District Court Opinion exercised poor judgment in looking after the safety and well-being of a sick child. Yet, the evidence discloses that the only persons with first-hand know- ledge of the facts upon which plaintiff's judgment was questioned, aside from plaintiff himself, were three members of his staff, with which he admittedly had an unhappy relationship. Plaintiff's superiors, dependent upon second-hand information for their knowledge of what occurred on the Belle Isle trip, con- sulted with plaintiff's staff, all female, to ascertain their version of the incident, but unaccountably failed to consult with plaintiff to ascertain his | side of the story, before deciding to ; dismiss the plaintiff from his employ- EF ment. This would appear to be a further extension of the practice, admitted by Sale Swietec, of always discussing staff 8 * _ District Court Opinion 4la plaintiff alone, or with staff members without plaintiff present. This practice was not used with plaintiff's prede- cessor. In order for such an incident to constitute a legitimate non-pretextual reason for discharging an employee, some substantial Good-faith effort towards obtaining an unbiased account of what actually transpired would have to be shown. The facts of this case indicate that no such effort was made. 9.) Plaintiff's discharge on July 15, 1975, was the product of illegal discrimination based upon his sex. 42 USC 2000e-2(a) (1). 10.) Plaintiff ailed to make rea- sonably diligent efforts to obtain other employment, to mitigate his damages, by refusing to accept the interview offered by Swietec for the position of Activities Training Aid 0S, on April 20, 1976. 4200 42a District Court Opinion USC 2000e-5(g); Sias v City Demonstration Agency, 588 F2d 692 (CA 9, 1978). ll.) Upon consideration of all the circumstances, the Court, in its dis- cretion, finds that neither party is entitled to an award of attorney's fees. 42 USC 2000e-5(k). Conclusion Based upon its finding that plain- tiff-did not make a timely filing with the EEOC prior to commencing this cdse, plaintiff's case must be dismissed with prejudice. Ts United States District Judge — 43a ~ RECOMMENDED FOR FULL-TEXT PUBLICATION See, Sixth Circuit Rule 24 Nos. 80-1735-6 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Davip L. Rasrsas, Plaintiff-Appellant, Cross-Appellee, On Appeat from the - District Court for the Eastern District of Micwican DerantMeNT OF MENTAL Michigan. HEALTA, Defendant-Appellee, : . Cross-Appellant. | : Decided and Filed July 28, 1983. ’ Before: Keitu and Jones, Circuit Judges, and Horrman,* E> Senior District Judge. a Kerru, Circuit Judge, delivered the opinion of the court, | in which Jones, Circuit Judge concurs. Horrman, Senior he District Judge (pp. 25-33) delivered a scparate opinion concur- ring in part and dissenting in part. a Karta, Circuit Judge. In this sex discrimination action David Rasimas alleged that the Michigan Department of Mental — ce . : F > ie i . j * 2 re .* _ , > i¢ i tue 4 an : ha) : rot i ‘= Sen ale te * - * 4 . Bi (bs rt aah ¢ + 5 —-* 44a 2 Rasimas v. Mich. Dept. of Mental Health Nos. 81-1735/6 Health terminated him from his supervisory position because of his sex. The district court agreed, but found that he had not timely filed this action with the Equal Employment Opportunity Commission (“EEOC”). The court also deter- mined that his refusal to interview for a non-supervisory position with the Michigan Department of Mental Health constituted a failure to mitigate damages. We affirm the sex discrimination finding, but reverse the timeliness and mitiga- tion of damages determinations. _ L On August 13, 1972, Defendant-appellee Michigan Depart- ment of Mental Health (“MDMH”) hired Rasimas as a Recre- ation Activities Training Aide 05 (“Recreation Aide”) at their Northville Residential Training Center (“Northville”).' North- ville supervisory personnel later transferred Rasimas from recreation. He became a speech and language classroom in- structor. 7 In the spring of 1975, Rasimas was recommended for promo- tion by Janet Nagy, Director of Nursing Programs, and Caron 45a Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 3 Nursing Home.? Nevertheless, each was confident that Rasi- mas could resolve the problems and gain the necessary super- visory skills from management seminars and. on-the-job training. On May 18, 1975, McDonald promoted Rasimas to Mental Retardation Program Supervisor 10 (“Supervisor 10°) at Hoover Nursing Home. At an initial orientation mecting, Swietec discussed the functions of a Supervisor 10. She told Rasimas that he was channels for communicating with Nagy and MORC Director David Rosen. During the initial period of Rasimas’ tenure, Nagy was away on vacation. Swietec consequently, was forced to many of Nagy’s functions as well as her own. Rasimas mean- while attempted to fulfill the functions of his position. Fol- se Se nd cy ey hr Gade of the . mos 46a 4 Rasimas v. Mich. Dept. of Mental Health Nos. 81-1735/6 circulated. She believed that there had never been a prob- lem with punctuality, scheduling, or excessive numbers of per- sonal calls. Other staff members alleged that Rasimas was insensitive to their nceds and interfered with the performance of their duties. Rasimas, by contrast, maintained that the staff was hostile and uncooperative.’ Swietec. concurred in Rasimas’ assess- ment, but continued to accept complaints from staff members who had bypassed Rasimas. In the days following June 5, she conferred with Rasimas and the disgruntled staff sepa- rately. Swietec did not, however, follow “standard procedure” and conduct joint meetings with Rasimas and his staff. Such predecessor. Nagy was also aware of the all female staff's hostility toward Rasimas. She eventually met with Rasimas on two or three occasions to offer advice. Nagy found Rasimas “receptive to her suggestions.” Swietec had a similar reaction, but felt Rasimas’ listening skills could be improved. At one of the June meetings, Nagy told Rasimas, in Swietec’s react negatively to anyone in plaintiffs position. In fact, as late as June 25, 1975, Swietec noted that “about half” of the i ° ; ' ? 47a > Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 5 staff's complaints against Rasimas were unwarranted. She be- . r lieved the staff was attempting to use Rasimas as a “scapegoat.” Nagy, meanwhile, concluded that Rasimas had not been making sufficient progress and that a written evaluation was mo tre In a memo dated July 1, 1975, Swietec critiqued Rasimas’ performance. The counseling memo described Rasi- mas’ supervisory weaknesses as follows: 1) the exercise of poor judgment in assuring the safety of resident patients; 2) ineffectively implementing supervisory directives to enforce rules applicable to his staff; and 3) failing to take notes and disseminate information acquired at a behavioral conference. Neither Nagy nor McDonald believed that the criticisms con- tained in the counseling memo of July 1, 1975, constituted grounds for terminating Plaintiff. On Saturday, July 12, 1975, Rasimas and three staff mem- bers took four resident-patients of the Hoover Nursing Home on a pre-arranged trip to Belle Isle. Near the mid-point of the trip, one of the patient-residents began to vomit. LaFrate, a recreation aide on probationary status, stated the child’s condi- tion was characterized by trembling, vomiting, and blueness near the edges of the mouth. Rasimas, the driver of the van, pulled into a nearby parking lot and examined the child. He 48a 6 Rasimas v. Mich. Dept. of Mental Health Nos. 81-1735/6 the party spent the next hour having a picnic lunch and touring the Belle Isle Children’s Zoo. Just prior to returning, LaFrate observed that the sick child appeared weak and lethargic. Rasimas directed a staff attendant to take the sick child to a murse as soon as they arrived at the Hoover Nursing Home. A nurse examined the child, but deemed it unnecessary to call a doctor. On Monday, July 14, 1975, a nurse at the Hoover Nursing Home approached Marilyn Whitmer, a recreation aide, and gave her a second-hand account of the Belle Isle trip. Whitmer immediately contacted Swietec and requested that she hold a meeting with the staff members who participated in the Belle Isle trip. Swietec directed staff members to submit written reports describing the trip. Swietec also contacted Nagy, who in turn contacted McDonald. McDonald dis- cussed the trip with LaFrate, the recreation aide who had disagreed with Rasimas’ decision to continue the trip. Nagy did not personally investigate the allegations against Rasimas. Nevertheless, later that afternoon she and Swietec recommended that Rasimas be dismissed. McDonald ac- cepted the recommendations, and summarily terminated Rasimas. At no time prior to, or during July 14, had Rasimas been consulted concerning the events of the Belle Isle trip. In fact, July 14 was Rasimas’ day off. He did not learn of the reports against him until the day after the termi- nation decision had been made. On July 15, 1975, Rasimas met with McDonald and Swietec. of ee ’ “= 49a 5 Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 7 leave. MDMH hired Lynn VanBundy, a female, to replace Rasimas. On July 28, 1975, Rasimas filed a grievance with the Michi- gan Civil Service Commission. On August 7, 1975, a meeting was held pursuant to Step 3 of the Michigan Civil Service Commission grievance procedure. The dismissal was affirmed. Rasimas appealed the decision to the Step 4 level. On October 16, 1975, a hearing was held before a hearing officer. Subsequently, the Michigan Civil Service Commission directed McDonald to list the factors which caused him to terminate Rasimas. In a letter dated October 22, McDonald identified the following four factors: 1) the failure to maintain good relationships with program staff and Hoover Nursing Home staff; 2) the failure to follow supervisory instructions; 3) the failure to provide adequate precautions for the health and safety of residents; and 4) the lack of adequate progress in acquiring supervisory skills. On November 21, 1975, an addi- tional hearing was conducted. On February 6, 1976, the hear- ing officer found that Rasimas was terminated for good cause, but that the dismissal was an overly harsh action. The Hear- ing Officer's decision recommended that backpay be denied, --— and Rasimas be demoted to recreation aide. It further pro- vided that he be placed on the layoff register until an opening | occurred. Rasimas appealed the Hearing Offcer’s decision. He was not notified that MDMH had implemented the Hear- ing Officer’s recommendations. On March 16, 1976, he filed a complaint against MDMH with the Michigan Department of Civil Rights.’ The next day he signed the formal charge prepared by the Equal Employ- ment Opportunity Commission. On April 20, 1976, Swietec sent Rasimas a form letter asking him to interview for a recreation side position. The form let- ter did not inform him of the actual availability of the posi- on PETAR 408 Bae 8 0 Otes come 50a 8 Rasimas v. Mich. Dept. of Mental Health Nos. 81-1735/6 tion, or of his right of first refusal regarding the position. In a letter dated April 30, 1976, Rasimas declined to interview, citing his pending complaint against MORC for dismissing him. Rasimas continued his cfforts to obtain substantially equiva- lent employment. In fact, he attended several interviews, took employment examinations, and sought employment with gov- ernment agencies, hospitals and private clinics. One of the examinations Rasimas passed qualified him to become a para- medic with the Detroit Emergency Medical Service.* Despite these efforts Rasimas was unable to obtain suitable employ- ment. Rasimas’ only source of income prior to trial was un- employment compensation and later, general assistance pay- ments from the state. On March 18, 1977, the Commission affirmed the Hearing Officer’s decision. A few weeks later, on April 7, the EEOC issue a “notice of right to sue” letter. On July 11, 1977, Rasimas filed the present sex discrimination action in the United States District Court for the Eastern District of Mi- chigan. On August 20, 1980, a bench trial was conducted. The court found that 1) the action was timely filed with the EEOC; 2) Rasimas’ termination was the result of sex discrimination; and 3) that Rasimas failed to mitigate his damages when he refused to interview for the activities aide position. Rasimas and MDMH each appeal that portion of the district court's sf opinion adverse to their position. - b Sin Rasimas pessed the medical service exami- ‘ sation, Scbeequentiy. be was placed on the Tegiter to become / ie bas 5la Nos. 00-1735/6 Rasimas v. Mich. Dept. of Mental Health 9 IL Timeliness: The timely filing of a complaint with the EEOC is a proce- dural prerequisite to the enforcement of a Title VII action in federal court. This requirement, however, is not jurisdic- tional, rather it is in the nature of a statute of limitations. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982), reh’g denied, Independent Federation of Flight Attendants v. Trans World Airlines, Inc., 456 U.S. 940 (1982). charge of discrimination should be filed with the EEOC within 180 days after the last discriminatory act. 42 U.S.C. § 2000e-5(e).” However, in deferral states, states with fair employment agencies, claimants must file charges with the state agency before pursuing their claims with the EEOC. 42 U.S.C. § 2000e-5(c).'"° The EEOC will not formally file > 9 42 U.SC. § 2000(e)-5(e) states: Sime for Ging Doves. A charge under this section shall be pF bh undred and eighty afte | | iif : f 5 f il i i it He eg if ceiving poucy iat ihe of Commission ye, oe Ramee Dae, Se ad ty Ge ~ 52a 10 Rasimas v. Mich. Dept. of Mental Health Nos. 81-1735/6 charges it has received until after the state agency has termi- nated its proceedings or sixty days have clapsed, whichever occurs earlier. Mohasco Corp. v. Silver, 447 U.S. 807 (1980). In deferral states all complaints must be filed with the EEOC within 300 days after the act of discrimination or within thirty days after receiving notice that the state has terminated its proceedings. 42 U.S.C. § 2000c-5(e). In the present case, MDMII argues that the present action is untimely without regard to whether the 180 day filing period or the 300 day filing period applies. MDMH acknow!l- edges that Rasimas initiated complaints at the EEOC and the Michigan Civil Rights Commission (“Commission”) on March 16, 1975, some 244 days after th» termination. MDMH points out, however, that the Commission lacks jurisdiction over com- plaints filed more than nincty days after the discriminatory act. Mich. Comp. Laws Ann. § 493.307(b). On March 16, the Commission did not have the “authority to grant or seek relief” from the alleged discriminatory practice as required by 42 U.S.C. § 2000e-5(e). Consequently, MDMH argues the 300 day limitation period which is available when a deferral agen- cy may grant relief simply docs not apply to the instant case. The 180 day limitation period applies since the tardy filing deprived the Commission of its opportunity to consider the complaint. We disagrec. The EEOC’s position is that a complaint need not be timely filed under state law before the claimant can benefit from the 300 day federal filing period. 29 C.F.R. § 1601.13(a)(3) 53a Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 11 (1981). The EEOC’s position is entitled to great deference. _ See Griggs v. Duke Power Co., 401 U.S. 424, 433-34 (1971). More importantly, the Supreme Court has summarily reversed and remanded two circuit court opinions which held that in deferral states the 300 day filing period was only available where the action had been filed with the state deferral agency within 180 days of the discriminatory act. See Ciccone v. Textron, Inc., 616 F.2d 1216 (1st Cir. 1980), vacated, 449 U.S. 914 (1980), on remand, 651 F.2d 1 (1st Cir. 1981), cert. de- nied, 452 U.S. 917 (1981); Ewald v. Great Atlantic and Pacific Tea Co., 620 F.2d 1183 (6th Cir.), vacated, 449 U.S. 914 (1980), on remand, 644 F.2d 884 (6th Cir. 1981). We agree with the Third Circuit’s opinion in Davis v. Cal- gon Corporation, 627 F.2d 674 (3d Cir. 1980), cert. denied, 449 U.S. 1101 (1981). In Davis, the plaintiff filed a complaint with the state fair employment agency 213 days after the dis- criminatory discharge. Ten days later he filed a charge with the Secretary of Labor. Although the district court was located in a referral state, it found that the 300-day filing period was not available to the plaintiff. The district court held the filing with the state agency was untimely and applied the 180-day filing period. The Third Circuit reversed, hold- ing that a plaintiff in a deferral state is entitled to the 300-day Carbide Chemical Co., No. 81-5306, slip op. (6th Cir. October 28, 1982); Aronsen v. Crown Zellerbach, 662 F.2d 584, 587 (9th Cir. 1981); Goodman v. Heublein, Inc., 645 F.2d 127 (2d Cir. 1981); Ciccone, 616 F.2d at 1220; Morrison v. United Parcel Service, 515 F. Supp. 1317, 1319-20 (W.D. Okla. 1981). Accordingly, we hold that deferral state claimants are not re- vie) Le Jee _ 3 54a 12 Rasimas v. Mich. Dept. of Meatal Health Nos. 81-1735/6 days after the discriminatory act. Jones, No. 81-5306, slip op. at 4-8. MDMH also contends that the present action is untimely because it was not filed with the EEOC within 300 days after Rasimas’ termination on July 15, 1975. MDMH admits that Rasimas initiated complaints at the EEOC and the Michigan Civil Rights Commission March 16, 1975, 244 days after he was terminated. MDMH maintains, however, that March 16 cannot be treated as the date the charge was formally “filed” with the EEOC according to Mohusco Corp., 447 U.S. at 801. In Mohasco, the Court interpreted 42 U.S.C. 2000e-(5)(c) to preclude charges being filed with the EEOC in deferral states until 60 days after the state fair employment agency has re- ceived notice of the allegations. 447 U.S. at 815-23. Therefore, MDMH asserts the present action was not formally “filed” with the EEOC until four days after the 300 day filing period had expired. We disagree. In Wiltshire v. Standard Oil of California, 652 F.2d 837, (9th Cir. 1981), cert. denied, 455 U.S. 1034 (1982), the Ninth Circuit exhaustively examined Mohasco and determined that it should not be applied to claims which were pending on the date the Supreme Court decision was announced. Wiltshire, 652 F.2d at 842. The Sixth Circuit has on two occasions ap- proved Wiltshire’s holding. First, Hall v. Ledex, Inc., 669 F.2d 397, 399 (6th Cir. 1982) analyzed Mohasco and endorsed the well-reasoned Wiltshire opinion: “We agree with the Ninth Circuit that Mohasco should not be applied retroactively. Wilt- shire v. Standard Oil, 652 F.2d 837 (9th Cir. 1981).” In Jones, this Court noted the Hall opinion and its approval of Wiltshire. Jones, No. 81-5306, slip op. at 66 n.3_ The present action was filed in 1976, several years before Mohasco was announced. Therefore, applying the precedents of Hall, Jones, and Wiltshire, we hold the present action was timely filed with the EEOC. Ta 55a Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 13 Ii. The Finding of Discrimination: MDMH argues that the district court’s finding of sex dis- crimination is clearly erroneous. MDMH asserts that Rasimas did not establish a prima facie case and the district court took certain comments Nagy made out of context. We disagree. The Supreme Court has explained that “[t]he burden of estab- lishing a prima facie case of disparate treatment is not oner- ous.” Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court described an appro- priate model for establishing a prima facie case of discrimina- tion: (i) that he belongs to a racial minority; (ii) that he plied and was qualified for a job for which the em- i nant ners applicants; (iii) that, te his qual- ifications, he was rejected; and (iv) that, his rejec- tion, the position remained open and the employer con- tinued to seek applicants from persons of complainant’s qualifications. 411 U.S. at 802. In the present case, Rasimas presented undisputed evidence which demonstrated his female subordinates were hostile and uncooperative. Moreover, his immediate supervisor referred to him in a sexually derogatory manner.'' Standard proce- dures apparently were not followed in counseling him, and his female supervisors recommended his discharge without seriously considering his version of the events which transpired during the Belle Isle outing. We hold that this showing was more than adequate to “give rise to an inference of unlawful discrimination.” See Burdine, 450 U.S. at 253. 1! Caron Swiatek admitted that she had called Rasimas a “male chauvinist” on at least one occasion. 56a 14 Rasimas v. Mich. Dept. of Mental Health Nos. 81-1735/6 MDMH also contends the statement: “The girls are out to get you,” was taken out of context. Allegedly, the statement was merely an indication that Rasimas’ female subordinates would be hostile toward any person in his position. Our examination of the record indicates that the district court's findings are amply supported. The district court was extremely sensitive to the context in which Swietec and Nagy commented on the staffs reaction to Rasimas. The court found that Swietec believed the staff's reaction was unrelated to Rasimas’ sex. The court, however, heard similar testimony from Nagy and determined that the statement “the girls are out to get you” could be accepted without qualification. The district court, as trier of fact, need not credit a witness’ explanation for making a particular statement. See, e.g., Mabin v. Lear Siegler, Inc., 457 F.2d 806, 806-07 (6th Cir. 1972) (per curiam). Moreover, the district court’s finding concerning the July 1, 1975 memo related to beliefs Nagy and Swietec held on July 1, 1975. It is not a blanket statement that Swietec and Nagy ultimately believed there were not sufficient grounds to ter- minate the plaintiff. Finally, there is ample evidence from which the district court could conclude that MDMH’’s asser- tion that Rasimas was fired for poor work performance was merely a pretext. Rasimas was hired and fired within two months even though his female supervisors knew his first sev- eral months would be a learning expcrience and his female staff was hostile and uncooperative. IV. Mitigation of Damages: The duty to mitigate damages after discrimination has oc- curred is statutorily imposed by Section 706(g) of Title VII. See 42 U.S.C. § 2000e-5(g). Section 706(g) states in pertinent part: “Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall _ Operate to reduce the back pay otherwise allowable.” This 57a Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 15 duty has ancient origins, and operates to prevent claimants from recovering for damages which they could have avoided through reasonable diligence. See Equal Employment Oppor- tunity Commission v. Ford Motor Co., ——U.S. —, 102 S.Ct. 3057, 3065 (1982), on remand, 688 F.2d 951 (1982). The finding that a claimant has exercised reasonable dili- gence in seeking other suitable employment following a dis- criminatory discharge is an issue of fact which, on appeal, is subject to the “clearly erroneous” standard of Fed. R. Civ. P. 52(a). See, e.g., Marks v. Prattco, Inc., 633 F.2d 1122, 1125 (Sth Cir. 1981) (per curiam); Equal Employment Opportunity Commission v. Sandia Corp., 639 F.2d 600, 627 (10th Cir. 1980). Once a claimant establishes a prima facie case and presents evidence on the issue of damages, the burden of pro- ducing sufficient evidence to establish the amount of interim earnings or lack of diligence shifts to the defendant. See, e.g., NLRB v. Reynolds, 399 F.2d 668, 669 (6th Cir. 1968); McCann Steel Co. v. NLRB, 570 F.2d 652, 655 n.4 (6th Cir. 1978); Marks, 633 F.2d at 1125; Sandia Corp., 639 F.2d at 627; Taylor v. Philips Industries, Inc., 593 F.2d 783, 787 (7th. Cir. 1979); Sias v. City Demonstration Agency, 588 F.2d 692, 696 (9th Cir. 1978); Equal Employment Opportunity Commission v. Lee Way Motor Freight, Inc., 625 F.2d 918, 937 (10th Cir. 1979); Sangster v. United Airlines, Inc., 633 F.2d 864, 868 (9th Cir. 1980), cert. denied, 451 U.S. 971 (1981). The Defen- dant may satisfy his burden only if he establishes that: 1) there were substantially equivalent positions which were avail- able; and 2) the claimant failed to use reasonable care and diligence in seeking such positions. Sias, 588 F.2d at 696; Sandia, 639 F.2d at 627. A. Substantial Equivalent Employment In Rutherford v. American Ba: & of Commerce, 12 Fair Empl. Prac. Cas. (BNA), 1184 (D. N.M. 1976), aff'd, 565 F.2d 1162 (10th Cir. 1977), the plaintiff, a loan officer trainee with over 58a 16 Rasimas v. Mich. Dept. of Mental Health Nus. 81-1735/6 six years experience, resigned over a dispute concerning her job duties. Plaintiff filed a sex discrimination charge with the EEOC and began searching for other substantially equivalent employment. During her search, Fidelity Bank offered her a job as a “float.” Plaintiff refused. American Bank of Com- merce, the defendant, argued that plaintiff had failed to miti- gate her damages. The court disagreed: [American Bank of Commerce] argues that Rutherford failed to mitigate damages. There is no support for this contention. Her teal of an offer by Fidelity Bank as a “float” because it took no account of her years of ex- perience and offered only remote possibilities for com- parable advancement, does not aid ABC's theory. Nor does ABC suggest any reason why Rutherford should be required to accept inferior employment. In the area of employment contracts comparability of status has been more important in some situations than compara- bility of salary, for example in the context of mitigation. See Williams v. Albemarle City Bd. of Education, 508 F.2d 1242 (4th Cir. 1974). Failure of plaintiff to seek reemployment with ABC also does not bar recovery. 12 Fair Empl. Prac. Cas. at 1190. We hold that the substantial equivalent of the position from which the claimant was discriminatorily terminated must afford the claimant virtually identical promotional opportuni- ties, compensation, job responsibilities, working conditions, and status. See Ford Motor Co., 102 S.Ct. at 3065 (“Although NLAB, 570 F.2d 658, 655 (6th Cir. 1978) (ene ”. caeedantcetue dda hen ah S. Ol Well Servicing, Inc, G24 F.2d 142, 144 (10th Cir. bac 3 i 59a Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 17 1980); Williams v. Albermarle City Board of Education, 508 F.2d 1242, 1243 (4th Cir. 1974) (en banc); Ballard v. El Dorado Tire Co., 512 F.2d 901, 906 (5th Cir. 1975). B. Reasonable Diligence A claimant is only required to make reasonable efforts to mitigate damages, and is not held to the highest standards of diligence. The claimant’s burden is not onerous, and does not require him to be successful in mitigation. See, e.g., Lee Way Motor Freight, 625 F.2d at 938; Sandia Corp., 639 F.2d at 627; NLRB vy. Pilot Freight Carriers, Inc., 604 F.2d 375, 377 (5th Cir. 1979): The reasonableness of the effort to find substan- tially equivalent employment should be evaluated in light of the individual characteristics of the claimant and the job mar- ket. See Stone, 624 F.2d at 144 (Reasonable diligence shown where job seeker voluntarily left non-comparable part-time employment to seek substantially equivalent work in another location ); Falls Stamping & Welding Co. v. International Union United Automobile, Aircraft and Agricultural Workers of America, 667 F.2d 1026 (6th Cir. 1981), cert. denied, 455 U.S. 1019 (1982) (Older claimants need not exert as much effort ages. MDMH attempted to meet its burden by showing that Rasimas had, on at least two occasions, rejected substantially equivalent positions. First, on April 20, 1976, Rasimas was sent a form letter The —_ 7" Re, 7 ag? all 60a 18 Rasimas v. Mich. Dept. of Mental Health Nos. 81-1735/6 In Ford Motor Co., the Supreme Court summarized the mitigation of damages rulc where the employer offered the claimant a position as follows: An unemployed or underemployed claimant, like all other Title VII claimants, is subject to the statutory duty to minimize damages set out in §706(g).” This duty, rooted in an ancient principle of law, requires the claim- ant to use reasonable diligence in finding other suitable employment. Although the un- or underemployed claim- ant need not go into another line of work, a a de- motion, or take a demeaning position, he forfeits his right to backpay if he refuses a job substantially equivalent to the one he was denied. Consequently, an employer charged with unlawful discrimination often can toll the accrual of backpay liability by unconditionally offering the claimant the job he sought, and thereby providing him with an opportunity to minimize damages. An em- ployer’s unconditional offer of the job originally sought to an un- or underemployed claimant, moreover, need not be supplemented by an offer of retroactive seniority to be effective... . 102 S.Ct. 3065. In the present case, it can hardly be disputed that the recre- ation aide position is not the substantial equivalent of the supervisor 10 position. The responsibilities as an activities aide in implementing recreational programs for the resident- patients with multiple handicaps are obviously not co-exten- sive with those of the supervisor 10 to whom he reports. In fact, it is clear that the request to interview was little more than an attempt to get Rasimas to accept a demotion. More- over, the interview letter was neither “unconditional” nor “an offer of employment.” See Stone, 624 F.2d at 144. An invi- tation to interview is, at best, a job offer which is contigent wpon the applicant having the best qualifications. Moreover, Rasimas was never informed that he had the right of first refusal with respect to the recreation aide’s position. ro ) a 6la | Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 19 Second, on November 9, 1979, Rasimas was offered an op- portunity to interview for a position as Assistant Rights Advi- sor at the Alpine Regional Center in Gaylord, Michigan. He declined to interview for the position. MDMH argued before the district court that this conduct constituted a willful failure to mitigate damages. The district court held that Rasimas could, consistent with his duty to mitigate damages, refuse to interview for a position 223 miles from his home in Warren, Michigan. We agree. It is well settled that a claimant has not failed to make a reasonable effort to mitigate darmages where he refused to accept employment that is an unreasonable distance from his residence. In Oman Construction Co., Inc., 144 NLRB Dec. (CCH) 1534 (1963), enf'd., 338 F.2d 125 (6th Cir. 1964), cert. denied, 381 U.S. 925 (1965), the discriminatorily discharged employee refused to accept a job more than 200 miles from his home in Nashville. This Court enforced the National Labor Relations Board order which held that the employce’s refusal did not constitute a failure to mitigate damages. Similarly in NLRB v. Madi- son Courier, Inc., 472 F.2d 1307 (D.C. Cir. 1972), the court held that the duty to make reasonable efforts to find employment did not obligate claimants “to seek work in Louis- ville or other areas located over 50 miles from Madison, due to the excessive commute such jobs would have entailed.” Id. at 1314. See, e.g., Florence Printing Co. v. NLRB, 376 F.2d 216, 221 (4th Cir.), cert. denied, 389 U.S. 840 (1967); Jackson v. Wheatley School Dist., 464 F.2d 411, 413-14 (8th Cir. 1972); Wells v. Hutchinson, 499 F. Supp. 174, 205 (E.D. Tex. 1980). Vv. Accordingly, we affirm the sex discrimination finding, but reverse the timeliness and mitigation of damages determina- tions. We commend the district court for its careful and sensi- tive treatment of the facts. Detailed findings of fact do mach 62a 20 Rasimas v. Mich. Dept. of Mental Health Nos. 81-1735/6 to enhance the quality of appellate review. The district court never fully addressed! the backpay issue due to its rulings on other issues. Therefore, this action is remanded to the district court for further proccedings consistent with this opinion. On remand the court should award backpay in accordance with the following guidelines. A backpay award should make the claimant whole, that is, to place him in the position he would have been in but for discrimination. In Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), the Supreme Court held: [G]iven a finding of unlawful discrimination, backpay should be denied only for reasons which, if applied gen- erally, would not frustrate the central statutory purpose of eradicating discrimination throughout the economy and making persons whole for injuries suffered for past discrimination. Id. at 421. Thus, in the absence of exceptional circumstances, backpay should always be awarded when a Title VII violation is found. See, e.g., Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702, 719 (1978); Head v. Timkon Roller Bearing Co., 486 F.2d 870, 876 (6th Cir. 1973); Meadows v. Ford Motor Co., 510 F.2d 939, 945 (6th Cir. 1975); Stewart v. General Motors Corp., 542 F.2d 445, 451 (7th Cir. 1976), cert. denied, 433 U.S. 919 (1977); Kirby v. Colony Furniture Co., Inc., 613 F.2d 696, 699 (8th Cir. 1980). The special factors which would constitute exceptional circumstances and prevent backpay awards are exceedingly rare.'? See Albemarle Paper Co., 422 U.S. at 417; Meadows, 510 F.2d at 942; Stew- ard, 542 F.2d at 451; Kirby, 613 F.2d at 699. Neither the arguable good faith of the defendant employer nor the dif- © ficulty in calculating the backpay award constitute exceptional '21f a district court should decline to award backpay, it should articulate its reasons for selecting that course of action. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 n.14 (1975). i ee _ i. ——- A ee ee oa Se 1 he ee ee eee ~ : 7 ” 7 63a Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 21 circumstances. See, e.g., Head, 486 F.2d at 877; Stewart, 542 F.2d at 451; Kirby, 613 F.2d at 699; Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 253-54, 260 (5th Cir. 1974). Backpay awards should completely redress the economic in- jury the claimant has suffered as a result of discrimination. A claimant, therefore, should receive the salary, including any raises, which he would have received but for discrimination. See Satty v. Nashville Gas Co., 522 F.2d 850, 855 (6th Cir. 1975), affd in part and vacated in part, 434 U.S. 138 (1977); Anderson v. Methodist-Evangelical Hospital, Inc., 464 F.2d 723 (6th Cir. 1972); Paxton v. Union National Bank, 29 Fair Empl. Prac. Cas. (BNA), 1233, 1252 (8th Cir. 1982); Equal Employment Opportunity Commission v. Kallir, Phillips, Ross, Inc., 550 F.2d 1203 (2d Cir. 1977), cert. denied, 434 U.S. 920 (1977). Sick leave, vacation pay, pension benefits and other fringe benefits the claimant would have received but for discrimination should also be awarded. See Meadows, 510 F.2d at 948; Satty, 522 F.2d at 855; Farmer v. Hotel Workers, Local 1064, 21 Fair Empl. Prac. Cas. (BNA) 1599 (E.D. Mich. 1978), affd in part and rev'd in part sub. nom. Farmer v. ARA Services, Inc., 660 F.2d 1096 (6th Cir. 1981); Culp v. General American Transportation Corp., 517 F.2d 1404 (6th Cir. 1975); Laugensen v. Anaconda Co., 510 F.2d 307, 317 (6th Cir. 1975); Paxton 29 Fair Empl. Prac. Cas. (BNA) at 1252; Pettway, 494 F.2d at 263; Bowe v. Colgate, Palmolive Co., 489 F.2d at 903-04 (7th Cir. 1973); Sandia, 639 F.2d at 626; Ingram v. Madison Square Garden Ctr. Inc., 482 F. Supp. 918, 926 (S.D.N.Y. 1979); Willett v. Emory and Henry Col- lege, 569 F.2d 212 (4th Cir. 1978). Backpay awards should not be reduced by the amount of income and social security taxes which would have been deducted from the wages the claimant would have received but for discrimination. See Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2d Cir. 1980). Unemployment benefits also should not be deducted from backpay awards. This Circuit has on several previous occa- 64a 22 Rasimas v. Mich. Dept. of Mental Health Nos. 81-1735/6 sions affirmed district courts which have held that unemploy- ment benefits should not be offset against backpay awards.'* See Falls Stamping & Welding Co. v. International Union United Automobile, Aircraft and Agricultural Workers of America, 667 F.2d 1026 (6th Cir. 1981), cert. denied, 455 U.S. 1019 (1982); Mabin v. Lear Siegler, Inc., 4 Fair Empl. Prac. Cas. (BNA) 679, 687 (W.D.Mich. 1971), affd, 457 F.2d 806 (6th Cir. 1972); Oman Construction Co., Inc., 144 NLRB Dec. 1543 1544 (1963), enfd, 338 F.2d 125 (6th Cir. 1964). But sec, Satty, supra. A number of other courts have also refused to reduce backpay awards by the amount of unemployment compensation received by the claimant. See, e.g., Winn-Dixie Stores, Inc. v. NLRB, 413 F.2d 1008, 1009-10 (5th Cir. 1969); Isaac and Vinson Security Services, Inc., 208 NLRB Dec. 47 (1973), enf'd, 467 F.2d 213 (5th Cir. 1972); Int- ernational Assoc. of Machinists & Aerospace Workers v. Cham- pion Carriers, Inc., 470 F.2d 744, 745 (10th Cir. 1972); Tid- well v. American Oil Co., 332 F. Supp. 424, 437-38 (D. Utah 1971); Abron v. Black & Decker Mfg. Co., 439 F. Supp. 1095, 13 As we understand our brother, Judge Hoffman, he personally would not deduct unemployment compensation from backpay awards. However, he feels constrained by National Labor Relations Board yv Gullet Gin Co., cag 361 (1951) to hold that the district court should have discretion in determining when to deduct unemploy- ment compensation from a packpay award. . at —. ; We disagree. ee een One 0 neteaal backpay That policy is to make “persons w woe, Or Seas Bast tion.” Albemarle P. Co. oody, 422 US. 405, 421 (1975). It is inconsistent with national Spreve. as my brother licitly has, that two pantienty situa ts may be made le” by radically differen t backpay awards. To allow district courts to determine just how “whole” a claimant will be is antagonistic to the establishment of a uniform national policy. the deduction does not have a oy | intend for an employee Mh nee a A eet Rises peneecene bt Rpleion ns eee Finally, ha domgen significance appears to have of the in Gullett Gin. There the Supreme Court explicitly rejected for the unemployment > Gee dis bocioae neces. Gan celeanke & eae ws cas, <> vy © 4, SS 4 re _* « ‘= See ise eee we 65a Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 23 1115 (D. Md. 1977), aff'd in part and vacated in part, 654 F.2d 951 (4th Cir. 1981). Backpay should be awarded even whcre the precise amount of the award cannot be determined. Sce, ¢.g., Equal Employ- . ment Opportunity Commission v. Detroit Edison Co., 515 F.2d 301, 315 (6th Cir. 1975), vacated on other grounds sub. nom. Utility Workers Union v. Equal Employment Opportunity Commission, 431 U.S. 951 (1977); Meadows, 510 F.2d at 943; Stewart, 542 F.2d at 452; Pettway, 494 F.2d at 260-61. Any ambiguity in what the claimant would have received but for discrimination should be resolved against the discriminating employer. See, e.g., Detroit Edison, 515 F.2d at 315; Kaplan v. Theatrical Employees Local 659, 525 F.2d 1354, 1362-63 (9th Cir. 1975); Pettway, 494 F.2d at 260-61; Stewart, 542 1) where the contributions to the fund from which the benefits derive are made solely by the defendant, the collateral source rule does not apply; 2) the plaintiff would otherwise receive a double recovery; and 3) the defendant would otherwise in effect be subject to punitive damages. See Equal Employment aay Commis- sion v. E Association Steamfitters 638, F.2d 579, 591-92 (2d Cir), cert. denied, 430 U.S. 911 (1976). The Supreme Court rejected these arguments, stating: should framing an 0 to reimburse employees for their lost earn- ings, manifestly no consideration necd be given to collateral * benefits which employees may have received. Bu t argues that the benefits paid from the Louisiana t tion Fund were not collateral but benefits. With this theory we are unable to agree. ree ments of unemployment compensation were not made to employees by taxation. True, these taxes were paid by em- ployers, and thus to some extent respondent helped to create the fund. However, the to the employees were not eo Rp Begone gf Bee Calernen te ee carry out a policy beticrment benefit the entire state [citations omitted). We think these facts show the to be collateral. It is thus from what we‘ have said that failure to take into ac- count in ordering pay does not make the employees more than ” as that phrase has been understood and applied. Gullett Gin Co.,\340 U.S. at 364. 66a 24 Rasimas v. Mich. Dept. of Mental Health Nos. 81-1735/6 F.2d at 452; Bowe, 489 F.2d 896, 902; Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1380 (5th Cir. 1974); Kallir, Philips, Ross, Inc., 420 F.Supp. at 923; NLRB v. Coca- Cola Bottling Co., 360 F.2d] 569, 573 (5th Cir. 1966); Crou- shorn v. Board of Trustces of Univ. of Tennessee, 518 F. Supp. 9, 27 n.16 (M.D. Tenn. 1980). In Detroit Edison, this Court held that backpay equal to the maximum amount which could have been earned but for discrimination was appropriate where it was impossible to reconstruct the employment his- tory of each claimant. 515 F.2d at 315. 67a Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 25 . HorrMan, Senior District Judge, concurring in part and dissenting in part. I agree with the majority that the judgment’ entered by the District Court on September 16, 1980, must be vacated and remanded. The reason is that the District Court relied upon the Supreme Court decision in Mohasco Corp. v. Silver, 447 U.S. 807 (1980), an opinion filed not quite three months prior to the judgment entered by the District Court in this case. A later upinion of the Supreme Court, Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982), held that the statutory filing of charges with the Equal Employment Opportunity Commission (EEOC) was not a jurisdictional prerequisite, but was in the nature of a statute of limitations. Since the District Court never had the opportunity to consider the Zipes case,? I would vacate and remand to permit the District 'The judgment was in favor of the Michigan Department of Mental Health (MDMH). The judgment reads: IT IS ORDERED AND ADJUDGED that the plaintiffs (sic) take nothi and that the action be dismissed on the merits. Each party is to pay its own costs of action.” 26 Rasimas v. Mich. Dept. of Mental Health Nos. 81-1735/6 ° Court to make specific findings and conclusions on this phase of the case, together with other matters mentioned herein. At this point my agreement with the majority ends. In Zipes, the Supreme Court said: By holding compliance with the filing period to be not a jurisdictional prerequisite to filing a Title VII suit, but a requirement subject to waiver as well as tolling when equity so requires, we honor the remedial purpose of the legislation as a whole without negating the par- ticular purpose of the filing requirement, to give prompt notice to the employer. The majority opinion reverses the District Court and de- prives it of the opportunity to consider waiver and tolling. While the ultimate result may be in accordance with the ma- jority’s views, this is a function of the District Court and not the appellate court. Of course, if neither Mohasco nor Zipes are to be considered retroactive, then the Sixth Circuit holdings in Hall v. Ledex, Inc., 669 F.2d 397, 399 (6th Cir. 1982), and Jones v. AIRCO Carbide Chemical Co., 691 F.2d 884 (6th Cir. 1982)? are applicable. In Zipes, the Supreme Court could have readily disposed aisle es Or ee Re 69a Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 27 FINDINGS OF FACT AND CONCLUSIONS OF LAW My concern with the findings of fact and conclusions of law rests with the conclusions of law. The findings are, of course, binding upon this court unless clearly erroneous. Under Conclusion (6) the District Court describes the type of discrimination which existed among the females who worked under plaintiff, and who were under his supervision. The findings do not point the finger of discriminatory practice against the persons who were superior to Rasimas, i.e., Rosen (Director), McDonald (Administrative Officer in charge of personnel), Nagy (a female Director of the Nursing Home program), and Swietec, known as Caron Bender during the pertinent period involved, (a female mental retardation super- visor 10). The most that can be said with respect to plain- tiffs superiors is that (1) they paid too much attention to the complaints of the staff working under Rasimas, and (2) be- fore making the final decision to discharge Rasimas, the super- iors did not discuss the Belle Isle incident with Rasimas “~~ 70a 28 Rasimas v. Mich. Dept. of Mental Health Nos. 81-1735/6 site sex, and even where there is no objectively verifiable = oe motivation. Simply put, the difficulty is this: should anyone presume that women would treat a man less favorable than another woman? The historical context of discrimination of this sort is not as readily apparent as that of discrimination against Blacks or women. Nonetheless, the Court deems that an inference of sexual discrimination can be drawn from the facts con- stituting the prima facie case described above. The same sexual role stereotypes that have caused women to be channeled either away from the job marketplace al- together, or into lower-paying jobs than men, necessarily have their counterparts in male sexual role stereotypes. Thus, as women are stereotypically expected to be sex- ually passive or submissive, men are, according to stereo- types, expected to be aggressive and dominant. Further, as women are stereot expected to be less suited to the business wor more suited to domestic roles, similarly men are stereotypically expected to be better in business related roles and less suited for do- mestic roles. In other words, hypothetically, a woman reacting to a man in a stereotypical manner would be more inclined to view him as insensitive to children than she would viewing another woman in the same circumstances. Based upon the evidence adduced at trial, the Court believes that hat the plaintiff in this case was victimized by exactly such a stereotypical view. Board of Governors v. 4354 (decided April 4, 1983), in which the Supreme Court + '* 7la Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 29 remanded the case to the District Court for further findings because the District Court erroneously focused on the ques- tion of the prima facie case rather than on the question of discrimination, I would remand this case to the District Court for further findings as to “discriminatory intent.” At no point in the factual findings has the District Court mentioned “dis- criminatory intent.”$ In Aikens, the Supreme Court was care- ful to note that once the trial court had determined that a prima facie case had been established, the McDonnell-Bur- dine presumption “drops from the case” and “the factual in- quiry proceeds to a new level of specificity”. Likewise, in Aikens, the Supreme Court reiterates its previous rulings that the factual inquiry in a Title VII case is “whether the de- fendant intentionally* discriminated against the plaintiff’, cit- ing Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Other than by inference derived from the legal conclusion of the District Court, I find no suggestion of intentional discrimination, especially with respect to the superiors of Rasimas who had the authority to hire and fire.” $I fully that the second portion of 42 U.S.C. § 1985(2) vides: “[OJr if two or more persons sooo Dee the purpose — peding, hindering, obsetructing, or defea n manner, due course of justice in any State or ~ oath ne FE ny and the females who were his - visors; nor the amended complaint a » this issue. K ¥v. Ruteledge, —— U.S. ——, 51 U.S.L.W. 4356 (decided April 4, 1983). oa a eS te 72a 30 Rasimas v. Mich. Dept. of Mental Health Nos. 81-1735/6 For these reasons, and in accord with the principles set forth in Aiken, supra, I would remand this case to the District Court for additional findings as to the existence of inten- tional discrimination and with whom such intent existed. I have grave doubts as to whether such intent, if it existed, is chargeable to the supervisors of Rasimas who had the authority to recommend his discharge to McDonald, the Ad- ministrative Officer in charge of personnel. The discharge ac- tion may have been neither discriminatory nor praiseworthy. The action may have been the result of poor employee rela- tions, but nevertheless not constitute discriminatory treat- ment.* Similarly, I entertain a doubt that an employer is re- quired to interview an employee charged with poor judgment in an isolated incident (the Belle Isle’s trip) where the facts are not in substantial disagreement, and that such failure to interview Rasimas in this case is any indication of discrimina- tory intent,’ either with respect to one on probationary status as was Rasimas or as to any permanent employee. lation was required of the employer and. because the Court of Appeals had imposed a heavier burden on the employer, the case for reconsideration. The same situation exists in this 73a Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 31 MITIGATION OF DAMAGES I agree with the majority that the actions of Rasimas, in declining to be interviewed in response to the letter of Ap 20, 1976 requesting same, should not, standing alone, diminish the damages to which Rasimas would be entitled, if he is entitled to any damages in this action. Assuming arguendo that the sole reason found by the District Court for mitigating the damages is predicated upon the actions of Rasimas in declining to be interviewed, this was error. However, on remand if it were possible under the majority opinion to con- sider findings on mitigation, I think that it would be per- missible for the District Court to consider the age factor (Rasimas was 34 when he was discharged, and 39 at the time of trial in 1980); the fact that he had applied for com- parable employment in Chicago (trial testimony), San Fran- cisco (deposition testimony), and other locations not imme- diately in the area he lived; that he was unmarried, his family status, and why he could not accept employment in other areas; along with other related factors. As the Supreme Court said in Ford Motor Company v. Equal. Employment Opportunity Commission, —- U.S. —, 102 S.Ct. 3057 (1982), 50 U.S.L.W. 4937, 4939: Under § 706(g), then, “backpay is not an automatic or mandatory remedy[.] . . . it is one which the courts ‘may’ 74a 32 Rasimas v. Mich. Dept. of Mental Health Nos. 81-1735/6 invoke” in the exercise of their “discretion [which] is equitable in nature.” Citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 415, 416 (1975). While this case is being remanded to the District Court to determine damages, the majority opinion is written in such a manner as constituting a direction for the District Court to award full backpay, at least to the date of the District Court's opinion rendered in September, 1980 — an award then in excess of $81,000. UNEMPLOYMENT INSURANCE The majority adopts a rue established by the majority opinion in E.E.O0.C. v. Ford Motor Co., 645 F.2d 183, 195-196 (4th Cir.), rev'd on other grounds, —- U.S. —, 102 S.Ct. 3057 (1982), 50 U.S.L.W. 4937, thus making it mandatory on all district judges in the circuit to disregard the receipt of employment benefits in computing damages in discrimina- tion cases. The District Court, in the present case, made no findings on this issue as it found for MDMH because of the time limitations. For the reasons expressed in my dissenting opinion in E.E.0.C. v. Ford Motor Co., 645 F.2d at 200, 210 (4th Cir. 1981), I fecl that the Supreme Court, in N.L.R.B. v. Gullett Gin Co., 340 U.S. 361, 364 (1951), has held that this issue should be left solely to the discretion of the District Court. It may be argued that in Ford Motor Co. v. E.E.O.C., supra, the Supreme Court did not discuss this issue and, therefore, tacitly approved the ruling of the Fourth Circuit majority. The fact is that any such ruling by the Supreme Court was wholly unnecessary to the decision in that case as the two women involved who had received unemployment insurance were cut off from any backpay long prior to the receipt of unemployment benefits in accordance with the Supreme 75a Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 33 Court’s ruling that they were required to accept an uncondi- L@ tional offer of employment to an equivalent position More significantly, the ruling of the majority in this case will create a conflict in the Sixth Circuit. In Satty v. Nashville Gas Company, 522 F.2d 850, 855 (1975), vacated and re- manded on other grounds, 434 U.S. 136 (1977), a panel of this court upheld the action of a District Court in reducing a discrimination award by the receipt of unemployment insur- ance. Thus, the majority in the instant case is changing the discretionary rule vested in district judges contrary to the Supreme Court in Gullett Gin Co. and the Sixth Circuit in Satty. For the foregoing reasons, and with great respect, I am obliged to concur in part and dissent in part. FO __ 76a UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Nos. 80-1735/1736 DAVID L. RASIMAS, Plaintiff-Appellant, Cross-Appellee, vs. MICHIGAN DEPARTMENT OF MENTAL HEALTH, Defendant-Appellee, Cross-Appellant. Before: KEITH AND JONES, Circuit Judges; and HOFFMAN, Senior District Judge, JUDGMENT ON APPEAL from the United States District Court for the Eastern District of Michigan. THIS CAUSE came on to be heard on the record from the said District Court and was argued by counsel. ON CONSIDERATION WHEREOF, It is now here ordered and adjudged by this court that the judgment of the said District Court in this case be and the same is ; hereby affirmed in part, reversed in part . and the case is remanded for further pro- | ceedings consistent with the opinion of > this Court. 77a } Each party to bear its own costs on this appeal. ENTERED BY ORDER OF THE COURT John P. Hehman, Clerk s/ Clerk A True Copy. Issued as Mandate: November 10, 1983 COSTS: NONE Attest: Filing fee.....$ Printing.......$ Fotal. ..§ s/ Deputy Clerk 78a NOS. 80-1735 80-1736 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT DAVID L. RASIMAS, Plaintiff-Appellant, Cross Appellee vs : >: ORDER MICHIGAN DEPARTMENT OF . MENTAL HEALTH, Defendant-Appellee, Cross~Appellant. BEFORE: KEITH and JONES, Circuit Judges, and JOFFMAN*, District Court Judge A majority of the judges of the Court having not favored rehearing, the petition for rehearing has been referred to the hearing panel for disposition. Upon consideration, the Court con- cludes that the petition for rehearing is » without merit. Accordingly, it is Ps 79a ORDERED that the rehearing be and hereby ’ is denied. ENTERED BY ORDER OF THE COURT JOHN P. HEHMAN, CLERK s/ $ ‘ *Honorable Walter E. Hoffman, Senior __ District Court Judge, Norfolk, Virginia --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1190%3A1. Public record. Not legal advice.