Canaday v. Kelley
| Decision Date | 14 October 1994 |
| Docket Number | No. 93-1860,93-1860 |
| Citation | 37 F.3d 1498 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Thomas Ben CANADAY, Individually and on behalf of those similarly situated, Petitioner-Appellant, v. Frank J. KELLEY, Attorney General, Individually and in his capacity as Attorney General of the State of Michigan, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before: CONTIE, MILBURN, and DAUGHTREY, Circuit Judges.
Plaintiff Thomas Ben Canaday appeals the district court's dismissal of his 42 U.S.C. Sec. 1983 action based upon its grant of defendants' motion to dismiss in part and its grant of defendants' motion for summary judgment in part in this action alleging that plaintiff's veterans' preference rights were violated. On appeal, plaintiff states the issues as (1) whether the district court erred in granting defendants' motion for summary judgment without allowing adequate time and assistance for discovery, despite plaintiff's claims that evidence in defendants' possession would allow him to withstand the motion; (2) whether, pursuant to 28 U.S.C. Sec. 1331, federal court jurisdiction exists for plaintiff's claim that continuing unequal enforcement of state statutes and regulations affecting veterans violates federal constitutional and statutory provisions; and (3) whether the lower court abused its discretion by denying plaintiff's motion for permission to supplement the record on appeal and by refusing to give plaintiff additional time to supply requested exhibits and materials. For the reasons that follow, we affirm.
Plaintiff is a veteran of the Korean War. He was honorably discharged from military service in 1959. In 1975, he was licensed to practice law in the state of Michigan, and in 1977, plaintiff applied for employment with the state. Plaintiff inquired about veterans' preference points during the initial application process. At that time, he was informed that under Michigan civil service rules, he did not qualify for such points because he had been discharged from military duty more than three years before the date of his application for employment. Prior to this exchange, the Michigan attorney general had issued a formal opinion finding the three-year rule a valid limitation under the authority granted to the Michigan Civil Service Commission.
Plaintiff was hired to work as a Compensation Hearing Officer with the Michigan Employment Security Commission on a temporary basis in August 1977; his assignment ended in July 1978. In 1979, the Michigan Attorney General issued a formal opinion finding that the Michigan constitutional provision, Mich. Const. art. 11, Sec. 5, empowering the Civil Service Commission to make rules and regulations governing personnel matters for persons in the classified civil service, superseded the Michigan Preference in Employment Act, 1897 Mich.Pub.Acts 205, Mich.Comp.Laws Sec. 35.401, which grants veterans certain employment preferences. Plaintiff was recalled in 1981, after a layoff of three years, and was assigned to a permanent position as an Administrative Law Examiner III with the Michigan Employment Security Board of Review in the state Department of Labor.
The Michigan Civil Service Commission adopted Rule 19 in January 1983. The new rule calculated seniority on the basis of continuous state service, regardless of the positions held. The previous rule had defined length of service as the amount of time employed within a given classification level or higher. The new rule also eliminated temporary appointment service rendered after January 1977 as the basis for credit toward seniority. After this rule change, plaintiff was laid off from his Administrative Law Examiner ("ALE") III position. The state informed plaintiff that the layoff was necessitated by a reduction in federal funding. Plaintiff filed a grievance with the Civil Service Commission as a result of the layoff; he also pursued an age discrimination claim with the federal Equal Employment Opportunity Commission (EEOC). The civil service grievance was denied after a hearing on August 23, 1983, because the examiner found that the layoff was not improper and that veterans' preference points were correctly awarded only upon initial state employment, not in subsequent personnel decisions. Plaintiff did not appeal the examiner's decision and dropped his federal claim.
In 1983, plaintiff was awarded a position as a referee in the Workers' Compensation Bureau, classified as ALE III. In 1986, the position was reclassified as ALE V. A year later, however, the Michigan legislature amended the state workers' compensation act to eliminate the referee position. The Civil Service Commission challenged the act as unconstitutional. Plaintiff, as well as other affected referees, also challenged the legislation, raising due process and equal protection claims. The actions were decided against both the commission and the individual litigants.
After the elimination of the ALE V position, plaintiff was assigned to a position as a Mediator VIB in the Department of Labor. Plaintiff characterized the assignment as a demotion from the ALE V position he had previously held and complained that the commission had failed to comply with the state supreme court's mandate that he be appointed to an ALE V position.
An ALE V position became available in the Michigan Department of Public Health in 1989. Although plaintiff applied for the job, it was awarded to a nonveteran applicant. Plaintiff filed a grievance with the Civil Service Commission claiming that veterans' preference protection should have been granted to him when he applied for the position. The commission denied his grievance. Plaintiff did not pursue his right of appeal to a state circuit court but filed an action in federal district court. Plaintiff remains a classified civil service employee in the Michigan Department of Labor.
Plaintiff filed this action on August 13, 1991, two months after the Michigan Civil Service Commission announced its final decision to deny plaintiff relief for his grievance regarding the selection of a nonveteran state employee for a position plaintiff sought in the Michigan Department of Public Health. In his complaint, plaintiff claimed that the various layoffs to which he has been subject, the state's failure to award him the ALE V position in 1989, and the opinions of the Michigan attorney general indicate anti-veteran attitudes among public officials and constitute an ongoing pattern of discrimination against him, as well as other war veterans similarly situated who entered the civil service after advanced education or professional training and without any state employment prior to military service. He argues that veterans so situated should not be treated differently from those who leave state employment to join the military and subsequently return.
The district court found that plaintiff's claims derived from three discrete events: (1) his layoff on February 11, 1983, from the Michigan Department of Labor, which came after adoption of the civil service rule changing the calculation of seniority and resulting in a reduction in plaintiff's seniority status, (2) his removal on March 30, 1987, from an ALE V position in the Department of Labor and his subsequent assignment to a position classified as Mediator VIB after his prior position was legislatively abolished, and (3) the hiring in 1989 of another state employee for an ALE V position plaintiff sought in the Department of Public Health. Plaintiff also challenges state attorney general opinions limiting the allowance of veterans' preference credit points to three years from discharge, OAG 1975, No. 4846, p. 1 (January 9, 1975), and finding the Michigan Preference in Employment Act regulating employment of veterans in the public sector superseded by the Michigan constitution's delegation of authority to the state civil service commission to make rules and regulations governing state employees in the classified civil service, OAG 1979, No. 5840, p. 110 (March 27, 1979). Plaintiff argues that these opinions are indicative of a general pattern of discrimination against veterans' preference for persons with no state employment prior to military discharge.
In plaintiff's complaint, federal jurisdiction was premised on 42 U.S.C. Sec. 1983. Plaintiff alleged that defendants, both as individuals and in their official capacities, were liable to plaintiff as a result of their enforcement of the civil service employment preference rule being challenged. Plaintiff argues that enforcement of the rule has resulted in the denial of his constitutional and statutory rights, including: (1) his right, as a veteran, to equal protection and procedural due process, U.S. Const. amend. XIV, Sec. 1, (2) his reemployment rights under 38 U.S.C. Secs. 4301 and 4302, (3) his right to be free of age discrimination in violation of 29 U.S.C. Sec. 621 et seq., (4) his right to unfettered freedom of interstate travel, U.S. Const. art. IV, Sec. 2, and (5) the guarantee in the Fourteenth Amendment that federal obligations will not be questioned, U.S. Const. amend XIV, Sec. 4. Plaintiff also asked the district court to exercise pendent jurisdiction to consider his state claim that Michigan's denial of veterans' preference protection to himself and to others similarly situated violated his rights under Mich.Comp.Laws Sec. 35.401 et seq.
Defendants first responded to a request for production of documents from plaintiff on January 14, 1992, and then filed a motion to dismiss or for summary judgment on March 2, 1992. Plaintiff filed a motion seeking class certification on the same day. On March 6, 1992, the parties held a scheduling conference at...
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