Manning v. City of Hazel Park
| Decision Date | 06 December 1993 |
| Docket Number | No. 134556,134556 |
| Citation | 202 Mich.App. 685,509 N.W.2d 874 |
| Parties | , 64 Fair Empl.Prac.Cas. (BNA) 662, 9 IER Cases 248 Marilyn S. MANNING, Plaintiff-Appellant, v. CITY OF HAZEL PARK, Michael Binkley, and James McGough, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
Stark & Gordon by Deborah L. Gordon, Detroit, for plaintiff-appellant.
Brady Hathaway, P.C. by Thomas M.J. Hathaway, Detroit, for defendants-appellees.
Before MARK J. CAVANAGH, P.J., and RICHARD ALLEN GRIFFIN and JANSEN, JJ.
Plaintiff appeals as of right from an order of the Oakland Circuit Court granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(10). We affirm in part, reverse in part, and remand for further proceedings.
This case involves claims of violation of due process, wrongful discharge, and sex and age discrimination. Plaintiff Marilyn Manning was hired by defendant City of Hazel Park in August 1961. She was promoted to deputy city clerk on October 10, 1977, and promoted to city clerk on October 25, 1977. She was then appointed acting city manager/city clerk on January 13, 1986, when the city council voted to terminate former City Manager Dan Potter. She became city manager/city clerk on March 10, 1986.
In November 1987, defendant Michael Binkley was elected mayor and defendant James McGough was elected mayor pro tempore. On February 8, 1988, the positions of city manager/city clerk were split by the city council and plaintiff was relieved of her duties as city clerk, but she remained in the position of city manager. The city council also reduced plaintiff's salary by $5,012 to the two-year level of the 1985-86 administrative employees' salary schedule.
On February 22, 1988, Binkley and McGough met with plaintiff. Plaintiff claims that they informed her that the city council believed she was drawing a higher salary than the amount approved and that she must resign, retire, or face immediate removal. Plaintiff allegedly asked for time to prepare for a hearing before the city council, but Binkley and McGough refused this request and informed plaintiff that the city council had already agreed to remove her. Plaintiff then chose to retire because her pension benefits would be affected if she resigned or was terminated and she would automatically lose her accumulated sick leave and vacation time if she was terminated.
After her retirement, plaintiff requested a hearing before the city's personnel advisory board, which was denied. The city council appointed Mitch Bobowski, a male in his thirties, as interim city manager. In April 1989, the city council appointed James Stump, a thirty-five-year-old male, as city manager. Stump was given a salary of $56,000 a year, while plaintiff's salary had been approximately $54,400 a year at her retirement.
Plaintiff filed a three-count complaint on March 27, 1989, alleging violation of due process, wrongful discharge, and sex and age discrimination. Defendants filed a motion for summary disposition, which the trial court granted in an order dated October 24, 1990.
Plaintiff first argues that the trial court erred in granting summary disposition of all her claims pursuant to MCR 2.116(C)(10). A motion for summary disposition pursuant to MCR 2.116(C)(10) may be granted when, except with regard to the amount of damages, there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. Such a motion tests the factual basis of the claim. A court reviewing the motion must consider the pleadings, affidavits, depositions, admissions, and any other documentary evidence in favor of the nonmoving party and grant the benefit of any reasonable doubt to the opposing party. Radtke v. Everett, 442 Mich. 368, 374, 501 N.W.2d 155 (1993). The opposing party may not rest upon mere allegations or denials in the pleadings but must, by affidavit or other documentary evidence, set forth specific facts showing that there is a genuine issue for trial. MCR 2.116(G)(4). The court may not make factual findings or weigh credibility in deciding a motion for summary disposition. Featherly v. Teledyne Industries, Inc., 194 Mich.App. 352, 357, 486 N.W.2d 361 (1992). Thus, this Court examines the facts of this case in a light most favorable to plaintiff. Radtke, supra.
Before deciding the merits of plaintiff's wrongful discharge claim, we must first decide if a wrongful discharge claim based on Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880 (1980), is applicable to public employees. This question has not yet been conclusively decided.
In other cases, this Court has implicitly found Toussaint to be applicable to public employees. Dudkin v. Civil Service Comm., 127 Mich.App. 397, 339 N.W.2d 190 (1983); Vander Toorn v. Grand Rapids, 132 Mich.App. 590, 348 N.W.2d 697 (1984); Rasch v. East Jordan, 141 Mich.App. 336, 367 N.W.2d 856 (1985). However, this question is clearly unsettled. See Engquist v. Livingston Co., 139 Mich.App. 280, 361 N.W.2d 794 (1984); Matulewicz v. Governor, 174 Mich.App. 295, 435 N.W.2d 785 (1989).
We believe, and now definitively hold, that a wrongful discharge claim based on Toussaint is applicable to public employees. We believe that our holding is supported by Toussaint, which relied in part on Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). In Perry, the United States Supreme Court clearly approved the concept of a constitutionally protected interest in continued employment based on an implied contract where the plaintiff was employed by a state college. Such an implied contract may be based on stated employer policies and established procedure. Toussaint, supra, 408 Mich. at pp. 617-618, 292 N.W.2d 880.
Accordingly, a wrongful discharge claim based on Toussaint is applicable to public sector employees.
Next, we must decide if defendants Binkley and McGough, through certain alleged oral promises, could bind the city to an implied employment contract terminable for just cause only. Plaintiff claims that Binkley and McGough told her, at the time that the city manager and city clerk positions were separated, that she was their choice for city manager as long as she continued to perform.
The city's charter provides that the city manager shall hold office by virtue of appointment by the city council. The city council also sets the city manager's salary and the city manager holds office at the pleasure of the council. Hazel Park Charter, ch. VI, § 6.1(b).
Binkley and McGough, as mayor and as mayor pro tempore respectively, were not city council members and could not, through any oral promises, bind the city to an employment contract with plaintiff. Generally, no officer or board, other than the common council, has the power to bind the municipal corporation by contract. Johnson v. Menominee, 173 Mich.App. 690, 694, 434 N.W.2d 211 (1988). Further, individual city council members have no power to bind the municipality. Id. Rather, municipal officers can bind a municipality only if they are empowered to do so by the city charter. Rasch, supra. Here, the city charter did not give the mayor and mayor pro tempore the power to bind the municipality individually.
Accordingly, Binkley and McGough had no authority to bind the city to an employment contract with plaintiff.
However, we must still determine if plaintiff had an employment contract terminable for just cause only through written employment policies and procedures. Employment contracts for an indefinite duration are presumptively terminable at the will of either party. Lynas v. Maxwell Farms, 279 Mich. 684, 687, 273 N.W. 315 (1937). To overcome the presumption of employment at will, a party must present sufficient proof of either a contractual provision for a definite term or a provision forbidding discharge in the absence of just cause. Rowe v. Montgomery Ward & Co., Inc., 437 Mich. 627, 636, 473 N.W.2d 268 (1991).
There are two alternative theories of enforceability that may support a claim of wrongful discharge. The first theory is grounded in contract principles. The contract theory is proved by the existence of an express agreement, oral or written. Toussaint, supra, 408 Mich. at p. 598, 292 N.W.2d 880. The second theory is termed the legitimate expectations theory and is based on the employee's legitimate expectations of continued employment absent just cause for termination arising out of the employer's policies and procedures. Id.
Pursuant to Chapter VI, § 6.1(b) of the Hazel Park Charter, the city manager is an at-will employee:
The City Manager shall hold office by virtue of appointment by the Council, which body shall also set his/her salary. He/she shall hold office at the pleasure of the Council. The City Clerk, City Treasurer, City Assessor, and City Attorney shall be appointed by the City Manager with the approval of the Council, which body shall set the salaries for such officers.
However, pursuant to the Hazel Park City Code, § 2.72.080, the city's civil service employees are divided into classified and unclassified positions, under which the city manager is unclassified. Section 2.72.260 of the city code provides:
The appointing authority may dismiss any employee for inefficiency, insubordination, lack of cooperation, habitual tardiness, or other just cause for the good of the service.
The personnel advisory board shall be notified of the dismissal and the reasons therefor.
Plaintiff claims that the conflict between the city charter provision and the city code provision creates a legitimate expectation that plaintiff was covered by the just-cause provision of the city code and that she therefore had an implied contract providing for discharge for just cause only. We disagree with plaintiff.
The city charter clearly and unambiguously applies to the city...
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