Dillon v. Lapeer State Home and Training School

• Decision Date: 21 September 1961
• Docket Number: No. 8,8
• Citation: 110 N.W.2d 588,364 Mich. 1
• Parties: Lottie E. DILLON, Plaintiff and Appellant, v. LAPEER STATE HOME AND TRAINING SCHOOL and Michigan Civil Service Commission, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 588

110 N.W.2d 588

364 Mich. 1

Lottie E. DILLON, Plaintiff and Appellant, v. LAPEER STATE HOME AND TRAINING SCHOOL and Michigan Civil

Service Commission, Defendants and Appellees.

No. 8.

Supreme Court of Michigan.

Sept. 21, 1961.

Anderson, Carr & Street, Lansing, for appellant.

Archie C. Fraser, Lansing, Fraser, Trebilcock, Davis & Foster, Lansing, and Ronald R. Pentecost, Lansing, of counsel, for Michigan Civil Service Commission.

Paul L. Adams, Atty. Gen., Samuel J. Torina, Sol. Gen., Lansing, Leon S. Cohan, Asst. Atty. Gen., Harry Iwasko, Jr., Asst. Atty. Gen., Lansing, for Lapeer State Home and Training School.

Before the Entire Bench, except CARR, J.

KAVANAGH, Justice.

Plaintiff appeals from a decision and order of the Michigan Civil Service Commission dated September 21, 1959, affirming her dismissal or separation from employment in State civil service at the Lapeer State Home and Training School.

Plaintiff was suspended on October 9, 1958, from her employment as an attendant nurse A-2, pending an investigation by the Lapeer county sheriff's department on the charge of theft of State property. On October 31, 1958, while the official investigation was still pending, plaintiff was permanently dismissed. The report of separation to the Civil Service Commission simply stated the following: 'Mrs. Dillon dismissed for conduct unbecoming a State employee.'

The decision of the Civil Service Commission on September 21, 1959, from which plaintiff appeals, is as follows:

'The Commission discussed the appeal of Lottie E. Dillon, former employee of the Lapeer State Home and Training School, after accepting and carefully considering the transcript of testimony taken before the Hearing Board on July 16, 1959, together with the exhibits, written interrogatories and briefs of Mr. Cassius E. Street, Jr., attorney for Mrs. Dillon, and Mr. Harry Iwasko, Jr., Assistant Attorney General representing the Lapeer State Home.

'On motion duly made and supported the Commission unanimously affirmed the suspension for investigation and the subsequent dismissal of Lottie E. Dillon by the Lapeer State Home because of conduct unbecoming a State employee.

'The Commission determined that the transcript of testimony at the hearing de novo of July 16, 1959, the exhibits introduced, and the interrogatories submitted do fully support a finding of conduct by Mrs. Dillon which is unbecoming a State employee and which justifies the separation of Mrs. Dillon from employment in the State civil service at the Lapeer State Home.'

The following facts are pertinent to an understanding of the matter: Upon her dismissal October 31, 1958, plaintiff appealed to the Civil Service Commission hearing board. Prior to a hearing by the board on December 2, 1958, no further notice as to the specific reasons for her dismissal was given plaintiff, nor was she given any specific information as to the particular acts of misconduct charged against her. Plaintiff appeared at the hearing and complained of the lack of proper notice and for the first time learned some of the alleged acts of wrongdoing when certain witnesses appeared at the hearing and gave testimony against her.

Dr. Rehn, superintendent of Lapeer State Home and Training School, stated that plaintiff's dismissal was based on the charge that she and her husband removed 'articles from the unit in which she was employed and placed them in their automobile, then Mr. Dillon would pick her up with the articles that did not belong to her.' Plaintiff's husband, Elmer A. Dillon, had also been dismissed from his employment at the Lapeer State Home and Training School for alleged complicity with his wife. His case was also heard by the board on December 2, 1958. The hearing board cancelled the suspension and dismissal of Elmer A. Dillon and reinstated him effective as of the temporary suspension date of October 9, 1958.

A subsequent hearing was had on plaintiff's case before the Michigan Civil Service Commission. The commission affirmed the hearing board's decision, approving plaintiff's dismissal without giving any specific findings as to the reason. On March 20, 1959, plaintiff filed an application for leave to appeal to this Court from the commission's decision. while this application was pending it was stipulated between the parties that the application was to be withdrawn without prejudice and with the right to re-apply, and the plaintiff would be permitted a rehearing de novo. Such a hearing was ordered before the Civil Service Commission on June 17, 1959. The Lapeer State Home and Training School was directed by the Commission to prepare and serve upon plaintiff, in advance of that date, an amended notice of separation setting forth for the first time the specific reasons for plaintiff's removal. A supplemental report of separation dated May 29, 1959, and delivered to plaintiff shortly thereafter, read as follows:

'The report of separation, dated October 31, 1958, in regard to your dismissal from State service is supplemented as follows:

'You have been discharged for conduct unbecoming a State employee in that:

'1. You have taken and converted to your own use State and personal patient property from the Lapeer State Home and Training School. This property was taken over a period extending from on or about March 20, 1948, to on or about October 29, 1958, and included, among other times:

'(a) A number of patient's cotton dresses and coats;

'(b) A number of institutional towels and bed linens;

'(c) Institutional kitchen ware;

'(d) Institutional cleaning supplies;

'(e) Miscellaneous food stuff;

'(f) Personal patient belongings.

'2. You have utilized State facilities for personal purposes contrary to specific orders in that you have used State laundry facilities and supplies for laundering your own and your family's clothing.'

Plaintiff complains the new notice is inadequate since it covers the full period of 10 years she has worked for the State, supplies no dates, no specific items of property, no names, no locations, and in short no specific acts of dishonesty or theft or other facts which would fairly apprise her of the full, specific reasons for her dismissal. The amended notice, also for the first time, contained a charge that plaintiff had violated local school orders or regulations by having her personal laundry done in State facilities.

After commencing the hearing on June 17, 1959, the Commission concluded it was not equipped nor prepared to hear the case de novo and ordered the parties to appear before a hearing board at Lapeer State Home and Training School on July 16, 1959, for a full scale de novo hearing. The hearing board was to conduct the hearing, prepare a transcript, and forward it to the Commission without decision, recommendation or comment, for a review and determination by the Commission. A hearing was held at the school on July 16, 1959. The transcript was thereafter prepared and forwarded to the Civil Service Commission. On September 21, 1959, the Civil Service Commission met and concluded that plaintiff's dismissal was proper and Justified by the record before it.

Plaintiff sought leave to appeal to this Court and, leave having been granted, she now asks this Court for reinstantement to her position as a civil service employee retroactive to October 9, 1958, together with restoration of pay for the entire period of her suspension and dismissal.

Plaintiff entered the employ of the State on March 20, 1948. Her civil service record reflects that she has consistently been given the highest rating attainable throughout her tenure. There has never been any previous question concerning her capabilities or honesty. Her employee promotional potential report and rating dated February 17, 1958, under 'personality attributes' shows the following: 'Emotionally stable; has ability to adjust to changes, honest; appears free from strong personal prejudices; shows self control.' This report was signed by Robert J. Dave, reporting supervisor, and Alice L. Pearson, attendant nurse supervisor. It is to be noted that the employee promotional potential report of February 17, 1958, contained the recommendation of the departmental rating committee that Mrs. Dillon was promotable. This report was signed by Helen B. Linehan, director of nursing service, L. Waterbury, personnel officer, and A. T. Rehn, M.D., superintendent.

On appeal plaintiff raises four questions, only one of which need be discussed herein, since it will be dispositive of this appeal. The question is:

Is there any competent, material and substantial credible evidence in the record, on which the dismissal action must be based, to sustain the decision and order of the Civil Service Commission?

The role of an appellate court in reviewing the decisions of administrative agencies has been adequately defined in the decisions of many courts. The United States Supreme Court, in the case of Consolidated Edison Co. et al. v. National Labor Relations Board. et al., 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126, said 'We agree that the statute, in providing that 'the findings of the Board as to the facts, if supported by evidence shall be conclusive,' 10(e), 29 U.S.C.A. § 160(e), means supported by substantial evidence. Washington, Virginia & Maryland Coach Co. v. National Labor Relations Board, 301 U.S. 142, 147, 57 S.Ct. 648, 650, 81 L.Ed. 965. Substantial evidence is more than a mrer scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Appalachian Electric Power Co. v. National Labor Relations Board, 4 Cir., 93 F.2d 985, 989; National Labor Relations Board v. Thompson Products, 6 Cir., 97 F.2d 13, 15; Ballston-Stillwater Knitting Co. v. National Labor Relations Board, 2 Cir., 98 F.2d 758, 760. We do not think that the Circuit Court of Appeals intended to apply a different test. In saying that the record was not 'wholly barren of...