Lewis v. Sears, Roebuck & Co. , 845 F.2d 624 ( 1988 )

KEITH, Circuit Judge.

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

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

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

I.

FACTS

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

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

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

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

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

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

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

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

Plaintiff appeals on two grounds: first, that the district court on the equitable motion for reinstatement was bound by the jury’s finding of discrimination, and should have therefore ordered reinstatement; and second, that the district court improperly cut the award for attorney’s fees in half. Boiled down, defendant’s cross-appeal consists generally of four issues: that there was insufficient evidence to support the jury’s verdict; that the district court erred in several of its instructions to the jury; that the district court abused its discretion in denying defendant’s motion for remit-titur; and that the district court erred in awarding attorney’s fees at all.

We find that the district court erred in not granting the equitable relief consistent with the jury’s verdict, and order that plaintiff be reinstated to the first available sales position in the Troy Sears store. Further, we believe that the district court erred in cutting the attorney’s fees award in half. We therefore REVERSE the district court’s order denying reinstatement, and order that the attorney’s fee award be granted in full. We REMAND the case to the district court to consider the fee award in light of plaintiff’s counsel’s work on this appeal. We AFFIRM the district court on the separate cross-appeal issues.

II.

DISCUSSION

A. Reinstatement

The jury found that Lewis was a victim of race discrimination under Michigan’s Elliott-Larsen Act. Thus, the question that is before us is whether the district court was bound by the jury’s factual finding of discrimination when deciding Lewis’ equitable claim for reinstatement.

The district court in this case applied Michigan law when it determined that a Michigan court sitting in equity is not bound by the findings of the jury. Citing Smith v. University of Detroit, 145 Mich.App. 468, 378 N.W.2d 511 (1985), and Abner A. Wolf, Inc. v. Walch, 385 Mich. 253, 188 N.W.2d 544 (1971), the district court held: “So, then, the Court finds that under Michigan law the findings of the jury [are] not binding on the judge in determining whether or not to award reinstatement.” Joint Appendix (“J.A.”) at 701-704. The court went on to make its own separate findings of fact under the Title VII claim, which were at odds with the jury’s verdict and implied findings on the Elliot-Larsen Act claim. In the alternative, the court held that even if it was bound by the jury verdict, it would deny equitable relief because race was but one factor in the decision to terminate Lewis:

[T]he Court believes it was within the Court’s own area of discretion under Michigan law to deny reinstatement on the grounds that race determination was only one factor in defendant’s decision to discharge and the evidence presented with regard to her quality of work was sufficient in itself to justify discharge.

(J.A. at 706).

In its decision to deny reinstatement, the district court was therefore confronted with a choice between state law, as articulated in Smith and Abner Wolf, and federal precedent, which, as we shall see below, holds that a judge sitting in equity is bound by the factual findings of the jury on an accompanying legal claim. The district court chose to apply state law. We believe that the court was in error.

As plaintiff argues, and as the Supreme Court has often held in diversity and pendent jurisdiction cases: while the substantive dimension of a claim finds its source in state law, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), the allocation of functions between judge and jury must be made by recourse to federal law. See Simler v. Conner, 372 U.S. 221, 222, 83 S.Ct. 609, 610, 9 L.Ed.2d 691 (1963); Magenau v. Aetna Freight Lines, 360 U.S. 273, 278, 79 S.Ct. 1184, 1188, 3 L.Ed.2d 1224 (1959) (“ ‘An essential characteristic of [the federal system] is the manner in which, in civil common-law actions, it distributes trial functions between judge and jury ...’”) (quoting Byrd v. Blue Ridge Rural Electric Co-op, Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958)). This is especially true in non-diversity cases, where there are indications of federal law leaning toward uniformity and there is no significant state interest to be served by the absorption of the state law as the rule of decision. We find in Abner Wolf and Smith no indication of a compelling state policy which favors the practice of having judges who decide equitable claims ignore jury verdicts. The Supreme Court cases and their progeny, on the other hand, underscore the important federal policy favoring federal determination of the allocation of functions between jury and judge. See also Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959),² and the line of cases resulting therefrom. We therefore find that the district court erred in not applying the federal law, set forth below, which holds that a judge deciding an equitable issue is bound by the jury’s factual findings on an adjoining legal claim.

While an action for reinstatement and backpay under Title VII is by nature equitable and entails no rights under the seventh amendment, an action for damages under the Elliott-Larsen Act is by nature legal and must be tried by a jury on demand. And “[w]hen legal and equitable actions are tried together, the right to a jury trial in the legal action encompasses the issues common to both.” Lincoln v. Board of Regents of University System, 697 F.2d 928, 934 (11th Cir.), reh’g denied, 705 F.2d 471, cert. denied, 464 U.S. 826, 104 S.Ct. 97, 78 L.Ed.2d 102 (1983) (citing Curtis v. Loether, 415 U.S. 189, 196 n. 11, 94 S.Ct. 1005, 1009 n. 11, 39 L.Ed.2d 260 (1974); Dairy Queen, Inc. v. Wood, 369 U.S. 469, 470-73, 82 S.Ct. 894, 896-97, 8 L.Ed.2d 44 (1962)). Thus, “when a party has a right to a jury trial on an issue involved in a legal claim, the judge is of course bound by the jury’s determination of that issue as it affects his disposition of an accompanying equitable claim.” Lincoln, 697 F.2d at 934. According to the progeny of Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959), the legal claim (here, the Elliott-Larsen Act claim) must be tried first before a jury and the equitable claim resolved subsequently in light of the jury’s determination of the legal claim. Hildebrand v. Bd. of Trustees of Michigan State University, 607 F.2d 705, 713 (6th Cir.) (Weick, J., concurring), later app., 607 F.2d 1282 (1979), and 662 F.2d 439, cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 168 (1982). As stated by the Eleventh Circuit in Lindsey v. American Cast Iron Pipe Co., 810 F.2d 1094 (11th Cir.1987), “[i]t is well-settled that the ‘court may not make findings’ contrary to or inconsistent with the jury’s resolution ... of that same issue as implicitly reflected in its general verdict.” Id. at 1098 (quoting Craft v. Board of Trustees of Univ. of Illinois, 793 F.2d 140, 143 (7th Cir.), cert. denied, — U.S. -, 107 S.Ct. 110, 93 L.Ed.2d 59 (1986)).

One important reason that a judge is not to make findings that contravene a jury’s verdict is that the verdict is res judicata with respect to the factual issues which would have necessitated jury resolution. In a recent case very similar to the one now before us, this court held that in situations where it appears that the court sitting in equity and the jury have reached different results, “the principles of collateral es-toppel control: ‘[wjhen a party has a right to a jury trial on an issue involved in a legal claim, the judge is ... bound by the jury’s determination of that issue as it affects his disposition of an accompanying equitable claim.’ ” Kitchen v. Chippewa Valley Schools, 825 F.2d 1004, 1014 (6th Cir.1987) (quoting Lincoln, 697 F.2d at 934). See also Garza v. City of Omaha, 814 F.2d 553, 557 (8th Cir.1987); King v. Alco Controls Div. of Emerson Electric Co., 746 F.2d 1331, 1332 n. 2 (8th Cir.1984).

Here, as in Chippewa, the district court inconsistently resolved the equitable and legal claims arising under Title VII and the Elliott-Larsen Act. Here, as in Chippewa, two factfinders examining the same facts under the same standard of liability reached opposite conclusions as to whether the defendant was liable. Thus, here, as in Chippewa, we hold that the jury’s verdict and factfinding controls. The judge erred as a matter of law by making factual findings inapposite to those already necessarily determined by the jury.

In the context of employment discrimination cases, it is well-settled that a jury’s findings of discrimination are binding on a court considering reinstatement. See Williams v. City of Valdosta, 689 F.2d 964, 976 (11th Cir.1982), where the court held that, “[a]ll findings necessarily made by the jury in awarding the verdict to [the plaintiff] are binding on the parties as well as on the trial court.” Similarly, the Eighth Circuit in an age discrimination case found that the jury verdict is binding on the court for the purpose of determining reinstatement: “ ‘In the absence of exceptional circumstances, the jury verdict in favor of the plaintiff on the issue of age discrimination is res judicata for the purposes of the equitable claim for reinstatement.’ ” Gibson v. Mohawk Rubber Co., 695 F.2d 1093, 1101 (8th Cir.1982) (quoting Cleverly v. Western Electric Co., 450 F.Supp. 507, 511 (W.D.Mo.1978), aff'd, 594 F.2d 638 (8th Cir.1979)). See also Hildebrand, 607 F.2d at 713 (Weick, J., concurring); Cancellier v. Federated Department Stores, 672 F.2d 1312, 1319 (9th Cir.), cert. denied, 459 U.S. 859, 103 S.Ct. 131, 74 L.Ed.2d 113 (1982).

The district court therefore should have been guided by the jury’s finding of discrimination and granted reinstatement. Once discrimination is found, reinstatement should be granted absent exceptional circumstances. Allen v. Autauga County Board of Education, 685 F.2d 1302, 1305 (11th Cir.1982); Kingsville Independent School District v. Cooper, 611 F.2d 1109, 1114 (5th Cir.1980); Moore v. Tangipahoa Parish School Board, 594 F.2d 489, 494-95 (5th Cir.1979). In Allen, the Eleventh Circuit expressed the rationale for the policy favoring reinstatement:

This rule of presumptive reinstatement is justified by reason as well as precedent. When a person loses his job, it is at best disingenuous to say that money damages can suffice to make that person whole. The psychological benefits of work are intangible, yet they are real and cannot be ignored.

Allen, 685 F.2d at 1306.

Federal courts have greatly limited the grounds on which reinstatement may be denied. It is not sufficient that reinstatement might have “disturbing consequences,” Sterzing v. Fort Bend Independent School District, 496 F.2d 92, 93 (5th Cir.1974), that it might revive old antagonisms, or that it could “breed difficult working conditions,” Allen, 685 F.2d at 1305. “ ‘Relief is not restricted to that which will be pleasing and free of irritation.’ ” Allen, 685 F.2d at 1305 (quoting Sterzing, 496 F.2d at 93).

In this case, Sears has made no cognizable claim of exceptional circumstances to deny reinstatement. The Troy Sears store is the third largest in the country, with ample numbers of departments in which to place Lewis, and, one imagines, a normal turnover rate among its 600 employees. We fail to see any possible exceptional circumstance to justify keeping her out of that store, and none were brought to our attention.³ We therefore order that Lewis be reinstated to the first available full-time sales position at the Troy Sears store.⁴

B. Attorney’s Fees

Following the jury’s verdict, á separate hearing was held on the question of attorney’s fees under the Elliot-Larsen Act, Mich.Comp.Laws Ann. § 37.2802. The issue was referred to a magistrate, who determined that plaintiff was entitled to $10,763.50 for attorney’s fees and $1,490.31 for costs. Both parties were subsequently permitted to log objections to the magistrate’s recommendations. Accepting in part and rejecting in part the magistrate’s recommendations, the district court determined that the plaintiff’s attorney’s fee was $34,200. The court then cut that figure in half, ultimately awarding $17,100 in attorney’s fees and $1,490.31 in costs. Plaintiff urges that the district court acted improperly in halving the award. We agree.

The district court and the magistrate below both found that the plaintiff was a prevailing party and was therefore entitled to attorney’s fees since “the crux of plaintiff’s case was discrimination and ... she prevailed on that issue with the jury.” (J.A. at 316-17). Both also found that the plaintiff’s attorney had adequately documented the number of hours (342) for which he is seeking reimbursement. (J.A. at 319). The district court also found that $100 per hour was a reasonable hourly fee for plaintiff’s counsel’s work on the case. (J.A. at 319).⁵ Using these figures, the district court found that the fee here was $34,200, but it pruned that figure “by one-half to account for the results achieved and the amounts in question ($30,597 in back pay and benefits awarded to plaintiff).” (J.A. at 319-20).

It is clear to us that the district court reduced the attorney’s fee award because that court failed to order the full relief plaintiff was requesting — namely, reinstatement. In Northcross v. Board of Ed. of Memphis City Schools, 611 F.2d 624, 636 (6th Cir.1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 3000, 64 L.Ed.2d 862 (1980), we found this approach to be improper, holding:

The question as to whether the plaintiffs have prevailed is a preliminary determination, necessary before the statute comes into play at all. Once that issue is determined in the plaintiffs’ favor, they are entitled to recover attorney’s fees for “all time reasonably spent on a matter.” The fact that some of that time was spent in pursuing issues on research which was ultimately unproductive, rejected by the court, or mooted by intervening events is wholly irrelevant.

The Northcross “prevailing party” requirement was modified by the United States Supreme Court in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), which was later adopted by this court in Kelley v. Metropolitan County Board of Education, 773 F.2d 677, 685 (6th Cir.1985), cert. denied, 474 U.S. 1083, 106 S.Ct. 853, 88 L.Ed.2d 893 (1986). The modified Kelley standard, which is not a “total break” from the Northcross approach, requires that if the litigation can be viewed as a series of discrete claims, then those claims may be analyzed individually in order to parse out those that were successful from those that were not. If, however, the case effectively revolves around one claim and a core of common facts, as does Lewis’ claim, then the “overall result” will remain the primary factor in determining counsel fees. Kelley, 773 F.2d at 685-86; Hensley, 461 U.S. at 435, 103 S.Ct. at 1933. Since Lewis’ discrimination claim is not divisible into tidy units, we find that the jury verdict compels the conclusion that Lewis prevailed overall.

Moreover, even if we were to agree with defendant’s argument that a court may properly segregate out results in a single-issue case such as this one, since we have reversed the district court with respect to reinstatement, it follows that the court’s decision with respect to attorney’s fees must now be reversed. We are here granting reinstatement; plaintiff’s remedy is now therefore whole. Her counsel’s award should mirror this change.

Accordingly, we reverse the decision below as to the amount of the attorney’s fees, and order restoration of the full $34,200 award. Further, we remand to the district court for a determination of the amount of time and money that plaintiff’s counsel expended on this appeal, and order that additional amount to be included in the fee award.

C. Sufficiency of the Evidence

On cross-appeal, defendant argues that Lewis failed to carry her burden that the decision to terminate her was based on race. Defendant appeals the denial of its motions for directed verdict,⁶ judgment notwithstanding the verdict and new trial, arguing several points: that Lewis did not establish that under similar circumstances, similarly-situated whites were treated differently than she was; that she did not link allegedly different treatment with proof of a discriminatory motive; and that Sears had a legitimate, nondiscriminatory reason for terminating her. Upon review of the evidence, we are unwilling to upset the jury’s verdict.

We are faced with a weighty standard when contemplating overturning the denial of defendant’s motions. A judgment n.o.v. may not be granted unless reasonable minds could not differ as to the conclusions to be drawn from the evidence. Gillham v. Admiral Corp., 523 F.2d 102 (6th Cir.1975), cert. denied, 424 U.S. 913, 96 S.Ct. 1113, 47 L.Ed.2d 318 (1976). An appeals court is not to “weigh the evidence, pass on the credibility of witnesses [and] substitute its judgment for that of the jury.” Toth v. Yoder Co., 749 F.2d 1190, 1194 (6th Cir.1984). Instead, we must view the evidence in the light most favorable to the opposing party, drawing all reasonable inferences in her favor. Id.; Morelock v. NCR Corp., 586 F.2d 1096, 1104-05 (6th Cir.1978), cert. denied, 441 U.S. 906, 99 S.Ct. 1995, 60 L.Ed.2d 375 (1979). The trial judge below — even while personally disagreeing with the jury’s verdict — recognized the seriousness of toppling a jury verdict and denied Sears’ motions for a judgment n.o.v. and new trial. We agree with the district court that the jury was presented with sufficient evidence to reach its conclusion.

In addition to proffering evidence that similarly-situated white employees were transferred to other departments instead of being fired, Lewis tendered ample proof to contradict Sears’ efforts to explain why those employees were differently situated from Lewis. For example, Sears explained its firing of Lewis by stating that its policy with respect to sub-par salespersons was modified during the time in question to permit firing of those employees, rather than transferring them to other departments. Yet plaintiff adduced evidence that the alleged policy, if it existed, was entirely oral and was applied inconsistently in practice. Moreover, testimony concerning the existence of the policy was impeached at trial.

Further, Sears urged at trial that the reasons for the transfers of Ms. Rock and Mr. Kalivoda were because the former, after recuperating from an illness, asked to be reinstated to her no-longer vacant position, and the latter was deficient only in selling maintenance agreements, not big-ticket items themselves. Yet, plaintiff offered evidence that the personnel department assured Rock that she would be reinstated to her old position, and that Sears has no written policy with respect to maintenance agreement performance. Additional examples: Sears contended that employees were transferred for reasons other than poor performance, but evidence revealed that poor performance actually may have been the reason for the transfers. Sears argued that full-time and part-time employees were not treated similarly and were not compared to one another; yet, evidence on the other side showed that all such employees were evaluated by the same criteria. Thus, taken as a whole, we find that a reasonable jury could have found that Sears discriminated against Lewis on the basis of race when it chose to fire her. We therefore affirm the district court’s denial of defendant’s motions for directed verdict, judgment notwithstanding the verdict and new trial.

D. Jury Instructions

Sears challenges three jury instructions. First, Sears complains of the following instruction, which derives from II Michigan Standard Jury Instructions 2d § 105.03 (Institute Cont. Legal Educ. ed. 1981):

Your task is to determine whether the defendant discriminated against Inez Jeanette Lewis. You are not to substitute your judgment for Sears’ business judgment or decide the case based on what you would have done.

However, you may consider the reasonableness or lack of reasonableness of Sears’ stated business judgment, along with that of all the other evidence in determining whether Sears discriminated against Inez Jeanette Lewis.

(J.A. at 246). Sears objects to the second paragraph of this instruction as an inaccurate statement of the law with respect to pretext, and as contradicting the first paragraph. Sears argues that a factfinder may not determine if a reason for terminating an employee is sound business judgment; the jury must focus solely on whether the firing was pretextual.

We agree that the jury is not to probe the business judgment of the employer. That does not mean, however, that the jury cannot consider the reasonableness of the decision as it illuminates the employer’s motivations. Thus, Sears does not have to establish that the basis on which it acted in firing Lewis was sound; rather, Lewis has the burden of demonstrating that Sears’ stated reasons are pretextual. One way for Lewis to do this is to show that Sears’ asserted business judgment was so “ridden with error that defendant could not honestly have relied upon it.” Lieberman v. Gant, 630 F.2d 60, 65 (2d Cir.1980). For example, Sears’ business judgment to fire Lewis may have been so unusual or idiosyncratic as to shed light upon Sears’ motivation in firing her. The more questionable the employer’s reason, the easier it will be for the jury to expose it as pretext. Id.

In Loeb v. Textron, 600 F.2d 1003 (1st Cir.1979), and in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), the First Circuit and the United States Supreme Court found that a jury may consider the reasonableness, or lack thereof, of an employer’s business judgment, insofar as it may assist in determining the employer’s state of mind. See also Lieberman, 630 F.2d at 65. In Loeb, the court wrote that “the reasonableness of the employer’s reasons may of course be probative of whether they are pretexts.” Loeb, 600 F.2d at 1012 n. 6. In Burdine, the Supreme Court deployed a similar rationale: “The fact that a court may think that the employer [exhibited bad business judgment] does not in itself expose him to Title VII liability, although this may be probative of whether the employer’s reasons are pretexts for discrimination.” Burdine, 450 U.S. at 259, 101 S.Ct. at 1096. We find, therefore, that the instruction is an accurate statement of the law, and was properly before the jury.

In its second challenge to the jury instructions, Sears devotes one paragraph of its brief to the argument that the court erred in refusing to give its Proposed Jury Instruction No. 4, which sets forth the burden of proof in a race discrimination case as adopted by the Supreme Court in Burdine and by the Michigan Court of Appeals in Clark v. Uniroyal Corp., 119 Mich.App. 820, 327 N.W.2d 372 (1982), and Jenkins v. Southeastern Michigan Chapter, American Bed Cross, 141 Mich.App. 785, 369 N.W.2d 223 (1985). Sears’ proposed instruction read, in part: “The burden of proof is at all times with the Plaintiff to establish that Sears intended to discriminate against the Plaintiff because of her race and that her race was one of the reasons which made a difference in her treatment.” (Emphasis supplied) (J.A. at 207).

“Burden of proof” is an amorphous term, comprising both the “burden of production” and the “burden of persuasion.” See IX Wigmore on Evidence §§ 2485-89 (1981). McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973) provides the relevant framework for distributing burdens in a Title VII case. A three-step process allocates the shifting burdens of the production of evidence. “The burden of production rests first on the plaintiff to establish his prima facie case, then on the defendant to articulate some legitimate, nondiscriminatory reason for the employee’s rejection,” and finally again on the plaintiff to show that the defendant’s reasons are pretextual. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825; see also Chappell v. GTE Products Corp., 803 F.2d 261, 265 (6th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1375, 94 L.Ed.2d 690 (1987). Thus, the burden of production is not forever on one party; rather, it is an evidentiary tool that shifts from one party to another. It is the burden of persuasion that rests at all times with the plaintiff. Chappell, 803 F.2d at 265. Defendant’s proposed instruction — stating that the burden of proof rests at all times with the plaintiff — is therefore an ambiguous and potentially confusing statement of the law.

At trial, the given jury instruction on the burden of proof was taken directly from II Michigan Standard Jury Instructions 2d § 105.04:

Plaintiff has the burden of proving that race was one of the motives cr reasons which made a difference in determining to discharge the plaintiff.

Your verdict will be for the plaintiff if you find that race was one of the motives or reasons which made a difference in determining to discharge the plaintiff. Your verdict will be for the defendant if you find that race was not one of the motives or reasons which made a difference in determining to discharge the plaintiff.

(J.A. at 248).

The Michigan Supreme Court Committee on Jury Instructions, in its drafting of the above standard instruction, considered and “deliberately eschewed” the McDonnell Douglas shifting-burdens formulation, stating specifically that such an instruction would: “ ‘add little to the juror’s understanding of the case and, even worse, may lead jurors to abandon their own judgment and to seize upon poorly understood legalisms to decide the ultimate question of discrimination.’ ...” II Michigan Standard Jury Instructions 2d, Employment Discrimination Introduction 17-5 (citing Loeb v. Textron, 600 F.2d 1003, 1016 (1st Cir.1979)). We agree with the Committee on Jury Instructions. Rather than confuse the jurors with legal definitions of the burdens of proof, persuasion and production and how they shift under McDonnell Douglas, we find that the above instruction was a clear and preferable statement of the law. We therefore find no error in the district court’s decision not to give defendant’s Proposed Instruction No. 4.

Finally, Sears also challenges plaintiff’s Instruction No. L6:

Sears has presented evidence that one person involved in the decision to discharge Ms. Lewis was black. The law treats all persons alike. If you should find that the plaintiffs race was a factor which made a difference in Sears’ decision to discharge her, the fact that one of the officials involved in that decision was black would make no difference.

(J.A. at 247). Sears argues that this jury instruction had the effect of commenting to the jurors upon the credibility of Eugene White, the Troy Store manager. Moreover, Sears suggests that the legal principle with respect to such a jury instruction is that a black official who administers discipline to another black person serves to negate any inference of racial discrimination. We disagree with defendant’s assertions.

First, we find that the court did not comment upon Mr. White’s credibility merely because he was mentioned in a jury instruction. The instruction simply stated that if the jury found that Sears discriminated against plaintiff because of her race, the color of one of the officers involved would make no difference.

Even more fundamentally, however, we find it surprising that defendant would have us sanction the inference they wish to draw from the presence of one black man in a supervisory position at Sears. Does defendant mean to imply that, because blacks, women, or older persons are involved in the decision-making structure of a company, then race, sex or age discrimination cannot occur? The mere presence of one black person in the decision-making process cannot shield a company from liability under civil rights statutes. Those statutes prohibit any agent of any employer from discriminating against persons because of race. See Elliott-Larsen Act, Mich.Comp.Laws Ann. § 37.2202(1). To allow the inference that defendants wish to make would obliterate the protections enshrined in laws targeting special classes of people. We are firmly opposed to taking such a stance, and affirm the district court’s decision to give the above instruction.

E. Remittitur

Finally, Sears urges that its motion for remittitur was improperly denied. Specifically, Sears contends that since Lewis did not present any evidence regarding her potential earnings for 1984 and 1985, the jury’s damage award was therefore based only on plaintiff's counsel’s comments to them as to plaintiff’s wage loss. Sears’ own evidence as to Lewis’ earning potential consisted of a statement by store manager White that Lewis’ salary would have been halved if she had been transferred to another department. Sears requests that the damages award be adjusted downward accordingly, from $30,597 to $15,413.⁷ Again, we disagree.

Where a jury grants a particular damage award and the district court refuses to disturb that finding, an appellate court should be certain indeed that the award is contrary to all reason before it orders a remittitur or a new trial. See Manning v. Altec, Inc., 488 F.2d 127, 133 (6th Cir.1973). A motion for remittitur should only be granted if the award clearly exceeds “ ‘the amount which, under the evidence in the case, was the maximum that the jury reasonably could find to be compensatory’ ” for the plaintiff’s loss. Id. at 132 (quoting Gorsalitz v. Olin Matheson Chem. Corp., 456 F.2d 180, 181 (5th Cir.), cert. denied, 407 U.S. 921, 92 S.Ct. 2463, 32 L.Ed.2d 807, reh’g denied, 409 U.S. 899, 93 S.Ct. 108, 34 L.Ed.2d 159 (1972)). See also Green v. Francis, 705 F.2d 846, 850 (6th Cir.1983) (per curiam); Jones v. Wittenberg University, 534 F.2d 1203, 1212 (6th Cir.1976); Brewer v. Uniroyal, Inc., 498 F.2d 973, 977-78 (6th Cir.1974). We can only reverse the district court’s denial of such a motion upon a showing of abuse of discretion. We find no such abuse here.

The jury very well may have found that Sears would have retained Lewis’ base salary, or that she might have been transferred to another department with comparable compensation, or that her supervisor’s remark that her pay would have been cut in half was simply not credible. There are many possible explanations for the jury’s damage award; as long as this is so, we will allow it to stand. We are unwilling to foil the jury’s attempt to mete out justice as long as there exists some possible rationale for their verdict.

Accordingly, we affirm the district court on all cross-appeal issues.

III.

CONCLUSION

For the foregoing reasons, we AFFIRM in part, REVERSE in part and order reinstatement and full attorney’s fees, and REMAND this case back to the district court for an additional fee determination based on the work done by plaintiff’s counsel on this appeal.

1 . The Michigan Elliott-Larsen Act and Title VII of the Civil Rights Act of 1964 are similar statutes, except that the protections enshrined in the Elliott-Larsen Act extend to more groups than under Title VII, and a jury trial may be had under Elliott-Larsen, whereas Title VII is an equitable claim. Compare 42 U.S.C. § 2000e-2(a) and Mieh.Comp.Laws Ann. § 37.2202(1).

2 . In an oft-cited concurring opinion in D'Oench, Duhme & Co. v. Federal Deposit Insurance Corporation, 315 U.S. 447, 471-72, 62 S.Ct. 676, 686, 86 L.Ed. 956 (1942), Justice Jackson wrote:

A federal court sitting in a non-diversity case such as this does not sit as a local tribunal. In some cases it may see fit for special reasons to give the law of a particular state highly persuasive or even controlling effect, but in the last analysis its decision turns upon the law of the United States, not that of any state. Federal law is no juridical chameleon, changing complexion to match that of each state wherein lawsuits happen to be commenced because of the accidents of service of process and of the application of the venue statutes. It is found in the federal Constitution, statutes, or common law. Federal common law implements the federal Constitution and statutes, and is conditioned by them. Within these limits, federal courts are free to apply the traditional common-law techniques of decision and to draw upon all the sources of the common law in cases such as the present.

(Footnote omitted).

3 . In a footnote, Sears does mention as a hardship that to reinstate Lewis, Sears would be forced to displace a non-culpable employee since there are no full-time positions currently available at the Troy Sears store. We are unconvinced by this argument. We do not ask that Sears fire someone to make room for Lewis; we ask only that she be reinstated to the first available sales opening, and be awarded her full salary until such a position becomes available.

4 . Note that Lewis asked to be reinstated to a big-ticket sales position. We take no position with respect to this request. As the evidence demonstrated, Lewis was undisputably deficient in sales of big-ticket items. The gravamen of her complaint is that she was not transferred from a big-ticket area to another department. While we are sympathetic to her legal claims, we cannot place her in a better position than she would have been in absent the discrimination. Consistent with her request for a transfer, we therefore only order that Lewis be reinstated to a position as a full-time salesperson, allowing Sears to make the determination as to the department in which her talents are best suited.

5 . According to plaintiffs brief at p. 31, the district court reached this figure by calculating plaintiffs attorney’s usual rate of $75 per hour for work done on a strict hourly basis, and increasing it by one third due to the contingent nature of the case.

6 . Plaintiff argues that Sears did not preserve an objection to the sufficiency of the evidence by properly moving for a directed verdict at the close of the evidence. Sears did, however, make an earlier motion for a directed verdict, which the trial judge took under advisement. (J.A. at 604-21). We do not believe that Sears was under the obligation to renew that motion at the close of proofs, three and one-half hours after the initial directed verdict motion. See Farley Transportation Co., Inc. v. Santa Fe Trail Transportation Co., 786 F.2d 1342, 1346 (9th Cir.1985). If plaintiff was prejudiced by Sears’ failure to renew, plaintiff might have fared better raising this issue to the district court in post-trial proceedings. See Beauford v. Sisters of Mercy-Province of Detroit, Inc., 816 F.2d 1104, 1108 n. 3 (6th Cir.), cert. denied, — U.S. -, 108 S.Ct. 259, 98 L.Ed.2d 217 (1987).

7 . According to Sears’ brief at p. 39, this figure was derived by calculating an $11,324 per year salary (one-half of Lewis’ 1983 earnings based on testimony that Lewis’ salary would have been reduced by half if she had been transferred to another department), for twenty-one months ($19,817), plus $2,264 in lost benefits, minus severance pay and interim earnings of $6,668. The $30,597 figure was arrived at based upon a $20,000 annual salary, for 21 months ($35,000), plus $2,264 in lost benefits, minus the severance pay and interim earnings of $6,668.