Marsh v. Department of Civil Service

• Decision Date: 12 July 1985
• Docket Number: Docket No. 72889
• Citation: 47 Fair Empl.Prac.Cas. (BNA) 1037,142 Mich.App. 557,370 N.W.2d 613
• Parties: Linda K. MARSH, Plaintiff-Appellant, v. The DEPARTMENT OF CIVIL SERVICE and the Michigan State Department of Treasury, Jointly and Severally, Defendants-Appellees. 142 Mich.App. 557, 370 N.W.2d 613, 47 Fair Empl.Prac.Cas. (BNA) 1037
• Court: Court of Appeal of Michigan — District of US

Page 613

370 N.W.2d 613

Linda K. MARSH, Plaintiff-Appellant, v. The DEPARTMENT OF CIVIL SERVICE and the Michigan State Department of Treasury, Jointly and Severally Defendants-Appellees.

Docket No. 72889.

142 Mich.App. 557, 370 N.W.2d 613,

47 Fair Empl.Prac.Cas. (BNA) 1037

Court of Appeals of Michigan.

Submitted June 5, 1984.

Decided May 7, 1985.

Released for Publication July 12, 1985.

[142 MICHAPP 559] G.B. Phillips, Lansing, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Arthur E. D'Hondt and Robert S. Welliver, Assts. Atty. Gen., for defendants-appellees.

Before GRIBBS, P.J., and BRONSON and SHEPHERD, JJ.

PER CURIAM.

Plaintiff appeals the circuit court's order granting defendants' motion for accelerated judgment pursuant to GCR 1963, 116.1(2). The circuit court found that it lacked subject matter jurisdiction to hear plaintiff's claims of employment discrimination. We reverse.

Plaintiff's complaint alleged that she was denied three promotions with the Department of Treasury because of discrimination based on sex, race and her asthma handicap. Plaintiff alleged that two of the promotions she sought were given to other persons, despite her higher test scores on Civil Service examinations for those positions. When [142 MICHAPP 560] plaintiff was first denied a promotion, allegedly because of racial discrimination, she used the full civil service grievance procedures, including an appeal to the Civil Service Commission. A final decision denying her grievances was rendered on December 6, 1982. This decision, appealable to the circuit court, was not appealed within the 60-day time limit. Plaintiff also filed a grievance alleging discrimination based on her handicap. She received a denial after a hearing before a civil service hearing officer, but did not further pursue her grievance by appealing to the Civil Service Commission. Upon plaintiff's failure to receive a third promotion, allegedly because of sex discrimination, plaintiff did not file a grievance, but filed suit in circuit court alleging constitutional and statutory violations. Plaintiff's complaint alleged violation of Const.1963, art. 11, Sec. 5 and violation of the Michigan civil rights act, specifically the Elliott-Larsen Civil Rights Act, M.C.L. Sec. 37.2101 et seq.; M.S.A. Sec. 3.548(101) et seq., and the Handicappers' Civil Rights Act, M.C.L. Sec. 37.1101 et seq.; M.S.A. Sec. 3.550(101) et seq. Plaintiff's complaint further alleged that pursuit of her grievances with the Civil Service Commission would be futile. Plaintiff also sought a jury trial on her claims for damages for violations of the Elliott-Larsen and Handicappers' Civil Rights Acts.

The circuit court granted defendant Civil Service Department's motion for accelerated judgment pursuant to GCR 1963, 116.1(2), finding that the court lacked original subject matter jurisdiction to hear plaintiff's claims. It held that plaintiff's sole initial remedy was through the internal grievance procedures of the Civil Service Commission. ¹ Although the issue of a right to a jury trial [142 MICHAPP 561] under the Elliott-Larsen and Handicappers' Civil Rights Acts was rendered moot, the court noted that previous circuit court opinions had held that there was no right to a jury trial under these acts.

We reverse and hold that employees of the state classified civil service may directly bring suit in the circuit court to enjoin the Department of Civil Service from violating Const.1963 art. 11, Sec. 5. We also hold that the Elliott-Larsen and Handicappers' Civil Rights Acts apply to state classified civil service employees. These acts provide that employees may maintain suit for injunctive relief and/or damages for violations of their provisions. We further hold that plaintiff is entitled to a jury trial on her Elliott-Larsen and Handicappers' Civil Rights Acts claims.

VIOLATION OF CONST.1963, ART. 11, SEC. 5

Const.1963, art. 11, Sec. 5 creates the Civil Service Commission and requires the Commission to "determine by competitive examination and performance exclusively on the basis of merit, efficiency and fitness the qualifications of all candidates for positions in the classified service, make rules and regulations covering all personnel transactions, and regulate all conditions of employment in the classified service" (emphasis added). This section further provides that: "No person shall be appointed to or promoted in the classified service who has not been certified by the commission as qualified for such appointment or promotion. No appointments, promotions or removals in the classified[142 MICHAPP 562] service shall be for religious, racial or partisan considerations " (emphasis added).

The judicial remedies provisions of this section provide that the "[v]iolation of any of the provisions hereof may be restrained or observance compelled by injunctive or mandamus proceedings brought by any citizen of the state" (emphasis added). Pursuant to this final provision, the circuit court had jurisdiction to entertain plaintiff's request for injunctive relief for any violation of art 11, Sec. 5. Calcatera v. Civil Service Comm., 52 Mich.App. 27, 30-31, 216 N.W.2d 613 (1974), lv. den. 391 Mich. 827, 217 N.W.2d 684 (1974); see also Reed v. Civil Service Comm., 301 Mich. 137, 3 N.W.2d 41 (1942).

CIVIL RIGHTS ACTS VIOLATIONS

Under the Michigan civil rights acts, specifically the Handicappers' and Elliott-Larsen Civil Rights Acts, employers are prohibited from discriminating against individuals on the basis of handicap, sex or race. M.C.L. Sec. 37.1202; M.S.A. Sec. 3.550(202); M.C.L. Sec. 37.2202; M.S.A. Sec. 3.548(202). The state and its subdivisions and agencies are employers covered by these acts. M.C.L. Sec. 37.1201; M.S.A. Sec. 3.550(201); M.C.L. Secs. 37.2103-37.2201; M.S.A. Secs. 3.548(103)-3.548(201). An individual aggrieved by an employer's violation of these acts may (1) file a complaint with the Department of Civil Rights to be heard by the commission, M.C.L. Sec. 37.1605; M.S.A. Sec. 3.550(605); M.C.L. Secs. 37.2601-37.2605; M.S.A. Secs. 3.548(601)-3.548(605), (2) bring a civil action in circuit court for appropriate injunctive relief and/or damages, M.C.L. Sec. 37.1606; M.S.A. Sec. 3.550(606); M.C.L. Sec. 37.2801; M.S.A. Sec. 3.548(801), and (3) is not precluded from other remedies. M.C.L. Sec. 37.1607; M.S.A. Sec. 3.550(607); M.C.L. Sec. 37.2705; M.S.A. Sec. 3.548(705). Exhaustion of administrative remedies with the Department of Civil Rights is unnecessary prior to filing [142 MICHAPP 563] suit in the circuit court. Jurisdiction of the Civil Rights Commission and the circuit court over civil rights claims is concurrent, and an aggrieved individual may proceed simultaneously in both forums. Constantinoff v. Emma L. Bixby Hospital, 111 Mich.App. 575, 314 N.W.2d 698 (1981).

Since the Handicappers' and Elliott-Larsen Civil Rights Acts provide direct access to the circuit court, the dispositive question is whether these acts apply to the state classified civil service. ²

Although the Michigan Handicappers' and Elliott-Larsen Civil Rights Acts clearly apply to the state as an employer, the Department of Civil Service argues that they do not apply to state employees in the state classified civil service. It contends that these acts cannot apply to classified civil servants because state constitutional provisions supersede and preempt any legislation regarding employment conditions of the classified civil service.

Const.1963, art. 11, Sec. 5, provides that the Civil Service Commission shall "make rules and regulations concerning all personnel transactions and regulate all conditions of employment in the classified service " (emphasis added). Const.1963, art. 4, Sec. 48, provides that "[t]he legislature may enact laws providing for the resolution of disputes concerning public employees, except those in the state classified civil service " (emphasis added). The Convention comment states that: "[t]he state classified civil service is exempted because the constitution has specific provisions in this area". The Michigan Supreme Court has also held that the "Michigan [142 MICHAPP 564] Civil Service Commission has plenary and absolute powers in its field ", and "may determine, consistent with due process, the procedure by which a state civil service employee may review his grievance" (emphasis added). ³ Viculin v. Dep't. of Civil Service, 386 Mich. 375, 393, 398, 192 N.W.2d 449 (1971).

Basing its argument on these constitutional provisions and Viculin, the Department of Civil Service contends that the civil rights acts do not apply to the classified civil service, and that the dispute at bar must proceed through the internal grievance procedures of the Civil Service Commission, which has exclusive jurisdiction over employment disputes of classified civil servants. We disagree.

This Court has previously rejected identical arguments raised by the Department of Civil Service and applied the civil rights acts to the state classified civil service, ⁴ holding that the Civil Service Commission does not have absolute power or exclusive jurisdiction in the area of job discrimination. Dep't. of Civil Rights ex rel. Jones v. Dept. of Civil Service, 101 Mich.App. 295, 301 N.W.2d 12 (1980), lv den. 411 Mich. 1034 (1981). In Dep't. of Civil Rights ex rel. Jones, employees of the classified civil service, apparently without resorting to civil service grievance procedures, ⁵ filed a complaint[142 MICHAPP 565] with the Department of Civil Rights against the Department of Civil Service. The employees alleged that the civil service's denial of long-term disability benefits for pregnancy-related disability constituted sex discrimination and violated the Fair Employment Practices Act (FEPA), M.C.L. Sec. 423.301 et seq.; M.S.A. Sec. 17.458(1) et seq., now repealed and replaced by the Elliott-Larsen Civil Rights Act, M.C.L. Sec. 37.2101 et seq.; M.S.A. Sec. 3.548(101...