Hopkins v. City of Midland

• Court: Court of Appeal of Michigan
• Writing for the Court: Before DANHOF; SHEPHERD
• Citation: Hopkins v. City of Midland, 158 Mich.App. 361, 404 N.W.2d 744 (Mich. App. 1987)
• Decision Date: 06 May 1987
• Docket Number: Docket No. 86540
• Parties: Raymond HOPKINS, Plaintiff-Appellant, v. CITY OF MIDLAND, Defendant-Appellee. 158 Mich.App. 361, 404 N.W.2d 744, 2 Indiv.Empl.Rts.Cas. (BNA) 410

Page 744

404 N.W.2d 744

Raymond HOPKINS, Plaintiff-Appellant, v. CITY OF MIDLAND, Defendant-Appellee.

Docket No. 86540.

158 Mich.App. 361, 404 N.W.2d 744,

2 Indiv.Empl.Rts.Cas. (BNA) 410

Court of Appeals of Michigan.

Submitted Aug. 11, 1986.

Decided March 3, 1987.

Released for Publication May 6, 1987.

[158 MICHAPP 365] Foster, Swift, Collins & Coey, P.C. by Arthur R. Przybylowicz and William F. Young, Lansing, for plaintiff-appellant.

John J. Rae, Midland, for defendant-appellee.

Before DANHOF, C.J., and SHEPHERD and HOBSON, ^* JJ.

SHEPHERD, Judge.

This case interprets the Whistleblowers' Protection Act and, more specifically, addresses the following issues:

(a) What is the relationship between the act and the collective bargaining process including the arbitration of labor grievances?

(b) Must an employee be denied a contract right before he or she may invoke the protection of the act?

(c) What facts must be established in order to state a prima facie case under the act?

We also address the rights of municipal employees who have had their employment status adversely affected as a result of exercising their rights of free speech under the United States and Michigan Constitutions.

After plaintiff's position with defendant city was eliminated, defendant failed to promote plaintiff to a newly created position having duties similar in part to those of plaintiff's old position. Plaintiff's union submitted a grievance to arbitration based on this failure to promote. The arbitrator found in defendant's favor. Plaintiff subsequently initiated the instant action in Midland Circuit Court alleging in Count I that, contrary to the Whistleblowers' Protection Act (the act), M.C.L. Sec. 15.361 et seq., M.S.A. Sec. 17.428(1) et seq., defendant failed to promote him in retaliation for plaintiff's having reported various [158 MICHAPP 366] safety violations to state authorities. Count II alleged that defendant failed to promote plaintiff in retaliation for his exercise of free speech on matters of public concern. The circuit court granted summary disposition for defendant.

We hold that plaintiff's failure to submit these claims to arbitration does not act as res judicata or collateral estoppel to bar the instant suit. Even an adverse arbitral decision would not bar plaintiff's subsequent litigation of his free speech claims. The Legislature intended judicial enforcement of the rights created by the Whistleblowers' Protection Act under the circumstances of this case.

We reverse the grant of summary disposition on Count I, finding that plaintiff has stated a prima facie case of discrimination under the Whistleblowers' Protection Act requiring further proceedings. We also reverse the grant of summary disposition on Count II, finding that the circuit court failed to determine if plaintiff's statements were on matters of public concern, rather than involving only a personal dispute over the elimination of plaintiff's position.

I

Plaintiff has been employed by defendant since May, 1979. Initially, he worked as a plumbing cross-connection inspector, a position he held until June, 1982. Plaintiff has been described as an "activist," and in May, 1982, he complained to the Michigan Department of Labor's Bureau of Safety and Regulation, alleging safety violations in defendant's old water plant. The Board of Health and Safety Compliance and Appeals investigated plaintiff's allegations and issued a citation to defendant in June, 1982, for various safety violations. Plaintiff wrote to the Bureau of Safety and Regulation [158 MICHAPP 367] again in November, 1982, complaining that its investigation had been inadequate because safety violations still existed at defendant's water treatment plant.

By the time plaintiff wrote the second letter, he had changed jobs. In June, 1982, defendant eliminated the job of plumbing cross-connection inspector for budget reasons. Based on plaintiff's seniority, he was allowed to "bump" into a position as an engineering aide, though it paid $6,000 a year less than his previous position. On June 21, 1982, plaintiff addressed the Midland City Commission concerning the personnel changes in connection with defendant's new budget. In his speech, plaintiff questioned the "integrity and backbone" of defendant's supervisors. Defendant's elimination of the cross-connection inspector position also prompted plaintiff to have his collective bargaining representative, the Midland Municipal Employees Association, file an unfair labor practice charge with the Michigan Employment Relations Commission, alleging that defendant's action in eliminating plaintiff's position constituted a violation of the public employment relations act and was in retaliation for plaintiff's union activities. On April 12, 1983, the MERC adopted the decision and recommended order of the hearing officer who found that defendant had not violated PERA.

Defendant subsequently combined the position of plumbing cross-connection inspector, plaintiff's former job, with the position of heating and mechanical inspector to create the new position of plumbing/heating/mechanical inspector. An opening for the new position occurred in 1983, but, although plaintiff was qualified for the position, defendant offered it to Larry Martin in October of that year. After contacting the Department of Licensing and Regulation, plaintiff discovered that Martin lacked [158 MICHAPP 368] the proper plumbing license necessary for the job. After this was brought to the attention of defendant's Director of Personnel, Martin withdrew his employment application. Plaintiff then reapplied for the job. He was later notified by defendant that another person had been hired for the job.

As a result of defendant's denial of plaintiff's application for the job opening on both occasions, plaintiff filed grievances with his collective bargaining representative, alleging that defendant violated the collective bargaining agreement between plaintiff's union and defendant in three respects: (1) by failing to "reinstate" plaintiff to the position of plumbing/heating/mechanical inspector; (2) by refusing to place plaintiff in that position because of his union affiliation and activities; and (3) by failing to give plaintiff appropriate priority over candidates with no previous city employment. Plaintiff's grievances were submitted to arbitration by his union. On November 16, 1983, the arbitrator denied plaintiff's grievances, finding that defendant's decision to deny plaintiff a promotion to the position of plumbing/heating/mechanical inspector was not a violation of the collective bargaining agreement. The arbitrator did not decide whether a statement by defendant's agent, Herb Weirauch, that he had considered plaintiff's comments before the city commission when deciding to deny plaintiff's application, was a violation of the contract.

On December 20, 1983, plaintiff sued defendant in circuit court. Plaintiff's second amended complaint contained two counts. Count I alleged that defendant had violated the Whistleblowers' Protection Act by discriminating against plaintiff in refusing to promote him because of plaintiff's complaints to the Michigan Department of Labor. Count II alleged that defendant's failure to promote [158 MICHAPP 369] plaintiff was in retaliation for plaintiff's remarks before the city commission. Plaintiff alleged that defendant had thus abridged plaintiff's right to free speech under the United States and Michigan Constitutions.

Defendant moved for summary disposition under MCR 2.116(C)(4) (lack of subject matter jurisdiction), 2.116(C)(8) (failure to state a claim), and 2.116(C)(10) (no genuine issue of material fact). Arguments were included to the effect that the arbitrator's decision was res judicata or that collateral estoppel applied as to the propriety of defendant's hiring procedures for the new position. The circuit court found that defendant's actions in failing to promote plaintiff could not constitute retaliation unless plaintiff had been denied a contract right. The court stated that the arbitrator's decision was "determinative of [plaintiff's] rights under the collective bargaining agreement and the law of the case." The court found that, under the collective bargaining agreement, plaintiff had only a "subjective expectancy" of promotion to the plumbing/heating/mechanical inspector position, not a contract right. Therefore, the circuit court found that no discrimination or retaliation had occurred either within the meaning of the act or the First Amendment. Accordingly, the circuit court granted summary disposition for defendant.

II

We must initially address the relationship of the arbitrator's decision to plaintiff's claims. The circuit court did not squarely address that portion of defendant's summary disposition motion raising the issue that the arbitrator's decision was res judicata nor did it address the issue of collateral estoppel. There is some hint in the circuit court's [158 MICHAPP 370] use of the term "law of the case" that the court may have found at least certain portions of the arbitrator's decision determinative or preclusive. Moreover, the parties have addressed the issue on appeal.

Early authority stated that an arbitration award is res judicata in a given case. Lumbermen's Mutual Casualty Co. v. Bissell, 220 Mich. 352, 354, 190 N.W. 283 (1922). An arbitrator, however, can only bind the parties on issues that they have agreed to submit to arbitration. Port Huron Area School Dist. v. Port Huron Education Ass'n, 426 Mich. 143, 152, n 8, 393 N.W.2d 811 (1986). An arbitrator lacks the power to resolve an issue not presented for arbitration. Lansing School Dist. v. Lansing Schools Education Ass'n, 142 Mich.App. 664, 669, 370 N.W.2d 11 (1985).

In the course of the arbitrator's findings, he extensively discussed the methods by which the new plumbing/heating/mechanical inspector was chosen. Weirauch, head of defendant's building...