Eckstein v. Kuhn, Docket No. 78760

• Citation: 160 Mich.App. 240,408 N.W.2d 131
• Decision Date: 08 July 1987
• Docket Number: Docket No. 78760
• Parties: William N. ECKSTEIN, Plaintiff-Appellee, v. George W. KUHN, Robert H. Fredericks, Michael A. Izzo, and Oakland County, Defendants-Appellants.
• Court: Court of Appeal of Michigan (US)

Page 131

408 N.W.2d 131

160 Mich.App. 240

William N. ECKSTEIN, Plaintiff-Appellee, v. George W. KUHN, Robert H. Fredericks, Michael A. Izzo, and Oakland County, Defendants-Appellants.

Docket No. 78760.

Court of Appeals of Michigan.

Submitted Dec. 5, 1985.

Decided May 18, 1987.

Released for Publication July 8, 1987.

Stringari, Fritz, Kreger, Ahern, Bennett & Hunsinger, P.C. (by Karl R. Bennett, Jr.), Detroit, for plaintiff-appellee.

The Fishman Group (by Steven J. Fishman, Malcolm D. Brown and Donald H. Sharg), Bloomfield Hills, for defendants-appellants.

Before MacKENZIE, P.J., and WALSH and SHEPHERD, JJ.

PER CURIAM.

On August 9, 1982, plaintiff was dismissed as Assistant Chief Engineer of the Oakland County Drain Office. As a county employee, he was employed under the county's merit system. Rule 8 of the merit system provides that disciplinary action, including discharge, shall be for cause. The preamble to Rule 8 describes "a formal appeal procedure" for disciplined "regular status" employees to the Personnel Appeal Board (PAB), "whose decisions shall be binding on such employees and departments." Under the rules, the PAB has the authority to modify, reverse, or affirm disciplinary action, and to award compensation.

On August 13, 1982, plaintiff appealed his dismissal to the PAB pursuant to the merit system rules. One week later, on August 20, 1982, plaintiff commenced the instant lawsuit. Plaintiff's complaint alleged, inter alia, that defendants (Oakland County and its Drain Commissioner, Chief Deputy Drain Commissioner, and Assistant Prosecutor) wrongfully discharged him in breach of his employment contract (Counts I and IV), and in violation of his asserted right to due process (Count II). Defendants responded on August 30, 1982, filing a motion for accelerated judgment and summary judgment as to both claims.

In an amended complaint filed September 8, 1982, plaintiff also alleged violation of the Whistleblowers' Protection Act, M.C.L. Sec. 15.361 et seq.; M.S.A. Sec. 17.428(1) et seq. (Count VI) and conspiracy to interfere with plaintiff's civil rights under 42 U.S.C. Sec. 1985(3) (Count VII). On November 5, 1982, defendants filed a motion for summary judgment as to Count VII. Pleadings in support of summary judgment regarding Count VI were filed in October, 1983.

Meanwhile, plaintiff's appeal of his discharge was heard by the PAB in October, 1982. On November 10, 1982, the PAB issued a unanimous decision finding cause for plaintiff's discipline, but modifying his dismissal to a ninety-day suspension and demotion to Civil Engineer III. Defendants successfully sought leave to appeal the PAB decision to the circuit court. Defendant Kuhn apparently refused, however, to permit plaintiff to return to work.

On January 12, 1984, the circuit court issued an opinion denying each of defendants' above motions. Additionally, the court dismissed defendants' appeal of the PAB decision for lack of jurisdiction. Defendants appeal by leave granted. We affirm in part and reverse in part.

Defendants first contend that the trial court erred in finding that it lacked jurisdiction to hear defendants' appeal from the decision of the PAB reinstating plaintiff. ¹ Specifically, the county's position is that its right to appeal the PAB's decision is constitutionally guaranteed under art. 6, Sec. 28 of the Michigan Constitution, which provides in part:

"All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law."

We agree with the county that the PAB is a local administrative agency, which "exists under the Constitution," and performs a quasi-judicial function when it renders a decision on an appeal by a discharged employee. We do not agree, however, that art. 6, Sec. 28 guarantees the county a right of appeal of the PAB's decision. Our conclusion focuses upon that section's language, "as provided by law."

In Evans v. United States Rubber Co., 379 Mich. 457, 461, 152 N.W.2d 641 (1967), our Supreme Court stated:

"We do not read the above language, 'shall be subject to direct review by the courts as provided by law', to mean that in each such case review shall be compulsory or as of right upon its being invoked by either party but only that review shall be had when, in the exercise of judicial judgment and discretion, the court shall, on application, so determine, or when so provided by law. No statute provides for such appeal as of right." (Emphasis added.)

In Viculin v. Dep't of Civil Service, 386 Mich. 375, 392, 192 N.W.2d 449 (1971), the Supreme Court reiterated its holding in Evans:

"Article 6, Sec. 28 does not guarantee a review in the nature of certiorari of 'right' but an appeal of such a nature may require 'leave' or be automatic as provided by law."

Thus, both Evans and Viculin support this Court's decision in Robertson v. Detroit, 131 Mich.App. 594, 597-598, 345 N.W.2d 695 (1983), where this Court wrote:

"Plaintiff's reliance on Const 1963, art 6, Sec. 28 is misplaced. As noted by the Supreme Court in McAvoy v. H B Sherman Co., 401 Mich 419, 443; 258 NW2d 414 (1977), reh den 402 Mich 953 (1977), the phrase 'as provided by law' contained in Const 1963, art 6, Sec. 28 'vests the Legislature with the authority to exert substantial control over the mechanism of how administrative decisions are to be appealed'. As noted, the Legislature has failed to specifically exert any control over the appellate rights and procedures stemming from a decision of a general municipal civil service commission. The circuit court, therefore, had no jurisdiction over plaintiff's dispute with defendant commission."

As in Robertson, no statute authorizes appellate review of the decisions of the PAB. ² The county therefore has no guaranteed direct appeal. ³

The county further contends that at minimum, art. 6, Sec. 28 of the constitution creates authority for circuit court review of decisions of municipal administrative agencies by leave. However, whether an appeal is of right or by leave, art. 6, Sec. 28 guarantees only appeals "as provided by law." The fact remains that no statute or court rule authorizes any form of appeal to circuit court from the decisions of municipal administrative agencies such as the PAB. ⁴ This Court cannot legislate such an appeal. Accordingly, we must conclude that the trial court reached the right result in finding it lacked jurisdiction to hear the county's appeal of the PAB's decision to reinstate plaintiff.

Defendants' next argument relates to the court's denial of their motion for summary judgment on plaintiff's claim under the Whistleblowers' Protection Act. Defendants contend that plaintiff's claim should be analyzed as set forth in Mt. Healthy City School Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), and that, under such analysis, the denial of defendants' motion for summary judgment was error.

The Mt. Healthy analysis urged by defendants was recently adopted with modifications not relevant to the instant appeal in Hopkins v. City of Midland, 158 Mich.App. 361, 404 N.W.2d 744 (1987). It is a burden of proof analysis. Under it, plaintiff has the burden of proving that he was engaged in protected conduct and that his participation in that conduct was a motivating factor in the decision to terminate him. The burden then shifts to the employer to come forward with evidence demonstrating that plaintiff's termination was for a legitimate reason. If the employer states a legitimate reason, the employee may still prevail if he demonstrates that the reason was mere pretext for his dismissal.

While we agree with defendants that the Mt. Healthy analysis, as modified by Hopkins, is applicable to the instant case, we cannot agree with the defendant's contention that summary judgment would have been proper under that analysis. Defendants assume arguendo that plaintiff established a prima facie case under the act. They then maintain that the fact that the PAB found good cause for the discipline of plaintiff satisfied their burden of going forward with evidence that plaintiff was terminated for a legitimate reason. Finally, defendants maintain that, because plaintiff came forward with no facts suggesting that the reason was pretextual, summary judgment should have been granted. The flaw in this reasoning is found in defendants' misplaced reliance on the PAB's decision as sufficient proof that the reasons for plaintiff's dismissal were valid. The PAB ordered plaintiff's reinstatement and therefore must have reached a result opposite that urged by defendants, i.e., that plaintiff was dismissed without cause. Accordingly, the court did not err in denying summary judgment on Count VI of plaintiff's complaint.

Defendants also contend that the trial court erred in denying their motion for summary judgment on Count VII of plaintiff's amended complaint, his 42 U.S.C. Sec. 1985(3) conspiracy claim, since plaintiff failed to allege racial or class-based discrimination by defendants. Defendants are correct, as plaintiff concedes on appeal. See Griffin v. Breckenridge, 403 U.S. 88, 101, 91 S.Ct. 1790, 1797, 29 L.Ed.2d 338 (1971). Summary judgment pursuant to GCR 1963, 117.2(1) should have been granted on this claim.

Finally, we need not address defendants' challenges to the trial court's denial of accelerated or summary judgment on plaintiff's wrongful discharge or due process claims. These claims (Counts I, IV, and II) have been made moot by the PAB's decision to reinstate plaintiff with discipline.

Affirmed in part, reversed in part, and remanded for further proceedings as to Count VI. No costs.

SHEPHERD, Judge (concurring in part and dissenting in part).

I agree with my colleagues on the Whistleblowers' Protection Act portion of the opinion. I...