Mollett v. City of Taylor, Docket No. 136281
| Decision Date | 07 December 1992 |
| Docket Number | Docket No. 136281 |
| Parties | , 142 L.R.R.M. (BNA) 2852 Arnold R. MOLLETT and Vicki R. Mollett, his wife, Plaintiffs-Appellants, v. CITY OF TAYLOR, Robert Diel, Individually and as the Fire Chief of the City of Taylor, and Cameron G. Priebe, Individually and as the Mayor of the City of Taylor, Jointly Severally, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
Dean Koulouras and John F. Walsh, Livonia (John A. Lydick and Amy R. Snell, Detroit, of counsel), for plaintiffs-appellants.
Dickinson, Wright, Moon, Van Dusen & Freeman by Henry W. Saad, Neol D. Massie, and Elizabeth M. Pezzetti, Bloomfield Hills, for defendants-appellees.
Before NEFF, P.J., and GRIBBS and SHEPHERD, JJ.
Plaintiffs appeal as of right a circuit court decision granting defendants' motion for summary disposition under MCR 2.116(C)(10) and dismissing their constructive discharge lawsuit. We affirm.
On July 24, 1988, plaintiff Arnold R. Mollett 1 retired from his position as a battalion chief in the City of Taylor Fire Department. On August 24, 1989, plaintiff filed a constructive discharge lawsuit, claiming violations of his statutory right to continued employment under the firemen and policemen civil service act, 1935 P.A. 78, M.C.L. Sec. 38.501 et seq.; M.S.A. Sec. 5.3351 et seq., 1986 P.A. 155, the collective bargaining agreement between defendant City of Taylor and the Taylor Firefighters' Union, and the Due Process Clause of the United States Constitution, U.S. Const. Am. XIV. Plaintiff alleges that he was forced to resign his position because defendant Robert Diel, the fire chief, subjected him to job-related harassment after a jury in federal court acquitted plaintiff of mail fraud relating to alleged fraudulently obtained copies of the lieutenant's examination used by the Taylor Fire Department. In his complaint, plaintiff alleges that defendant Diel harassed him from 1984 until July 1988, when he resigned, and that defendant Cameron G. Priebe, Mayor of the City of Taylor, refused to rectify the situation even though he was fully aware of Diel's harassment. Specifically, plaintiff alleges:
(15) Said harassment included but was not limited to:
(a) refusal to promote Plaintiff when he placed higher in competitive scores than officers who were promoted.
(b) Forced Plaintiff to perform menial tasks in front of men that worked for Plaintiff.
(c) Denied access to his subordinates when the rules and regulations called for his supervision over said employees.
(d) That there was [sic] countless times when Defendant DIEL would verbally abuse and mistreat Plaintiff in front of other members of the Department.
(e) He was on numerous occasions punished by Chief DIEL without the opportunity to have a hearing as required by the rules and regulations.
(f) That while he held the position of Shift Commander he was put on the night watch and had a lesser ranking man placed over Plaintiff and his subordinates, contrary to the rules and regulations.
(g) That Defendant DIEL would not allow any courtesies, such as switching days off to Plaintiff as he did to his polictical [sic] cronies and personal friends.
In paragraph 20, plaintiff contends that Diel's harassment also included, but was not limited to:
(a) Refusing to communicate to Plaintiff regarding matters normally communicated to senior officers, in effect refusing to recognize Plaintiff for his attained position.
(b) Refusing to allow Plaintiff the full use of the office and office equipment.
(c) Imposing unnecessary and unreasonable requirements and restrictions on Plaintiff when Plaintiff was hurt during the course of his employment.
(d) Imposing unnecessary and unreasonable requirements and restrictions on Plaintiff when he was on sick leave.
In paragraph 23, plaintiff further alleges that Diel's harassment included, but was not limited to:
(a) Refusing to allow Plaintiff the opportunity to carry out the duties of Battalion Chief as required by the rules and regulations.
(b) Refusing permission to Plaintiff to use the office and office equipment or to properly use the services of the clerical staff.
(c) Publicly berating Plaintiff in from [sic] of his subordinates.
(d) Publicly berating and embarrassing Plaintiff by making derogatory statements over the public address system.
(e) Refused Plaintiff personal days off for no other reason than harassment.
(f) Frequent reprimands that were totally unjustified, unwarranted and unfounded, and never formally brought on for hearings.
As a result of the defendants' "campaign of harassment," plaintiff alleges that he was constructively discharged.
Before his retirement on July 24, 1988, plaintiff did not complain to the civil service commission established by the City of Taylor under the act or file any grievance in accordance with the collective bargaining agreement. 2 In dismissing plaintiff's claims, the trial court held that plaintiff was required to exhaust his administrative remedies available under the act and the collective bargaining agreement before filing an action in circuit court.
Before turning to the substantive issues on appeal, we first address plaintiff's contention that the trial court relied upon the wrong subrule under MCR 2.116(C) in granting summary disposition. In Sankar v. Detroit Bd. of Ed., 160 Mich.App. 470, 473, n. 1, 409 N.W.2d 213 (1987), this Court noted that MCR 2.116(C)(7) is the proper subrule for deciding whether to grant a motion for summary disposition for failure to exhaust grievance and arbitration procedures. While the trial court granted summary disposition under MCR 2.116(C)(10), no genuine issue of material fact, we note that plaintiff's procedural challenge to the order of summary disposition lacks merit, as exact technical compliance with MCR 2.116(C) is not required. Moy v. Detroit Receiving Hosp., 169 Mich.App. 600, 605, 426 N.W.2d 722 (1988). Because it does not appear that either party was misled by the mislabeling of the motion for summary disposition, we will review this case as a motion for summary disposition under MCR 2.116(C)(7).
In reviewing a motion for summary disposition under MCR 2.116(C)(7), this Court must accept as true all the plaintiff's well-pleaded allegations and construe them most favorably to the plaintiff. Coleman v. Dowd, 185 Mich.App. 662, 665, 462 N.W.2d 809 (1990). Summary disposition is inappropriate unless no factual development could provide a basis for recovery. Markis v. Grosse Pointe Park, 180 Mich.App. 545, 551, 448 N.W.2d 352 (1989).
The firemen and policemen civil service act (Act 78) sets forth the following purposes in its preamble:
[T]o establish and provide a board of civil service commissioners in cities, villages, and municipalities having full-time paid members in the fire and/or police departments; to provide a civil service system based upon examination and investigation as to merit, efficiency, and fitness for appointment, employment, and promotion of all full-time paid members appointed in the fire and police departments and respective cities, villages, and municipalities; to regulate the transfer, reinstatement, suspension, and discharge of said officers, firemen and policemen....
Once the act is adopted by the voters of a city, village, or municipality, a three-member civil service commission is established. M.C.L. Sec. 38.502; M.S.A. Sec. 5.3352. The first member is "appointed by the principal elected officer of the city, village or municipality"; the second member is selected by the paid members of the fire or police department; and the third member is selected by agreement of the other two members.
M.C.L. Sec. 38.514(1); M.S.A. Sec. 5.3364(1) (Section 14) provides that any member of a police or fire department "may be removed or discharged, suspended without pay, [or] deprived of vacation privileges" for various forms of misconduct:
However, a member of any fire or police department encompassed by this act shall not be removed, discharged, reduced in rank or pay, suspended, or otherwise punished except for cause, and in no event until he or she has been furnished with a written statement of the charges and the reasons for the actions.
Charges must be filed within ninety days, and the affected employee may answer the charges and demand a public hearing. Section 14 goes on to provide:
If the removing officer fails to make charges to the satisfaction of a member or members of a fire or police department in a city, village, or municipality, the member or members of the fire or police department may present the information to the civil service commission.
Although there is no provision in the act allowing a member of a police or fire department to file an action in circuit court, a decision of the civil service commission may be appealed to circuit court. M.C.L. Sec. 38.514; M.S.A. Sec. 5.3364.
The collective bargaining agreement between Local 1252, International Association of Firefighters and the City of Taylor provides fire fighters with the right to bring grievances and for an arbitrator to rule on those grievances. Pursuant to Article III, Section 1:
Employees shall have the right ... to express or communicate any view, grievance, complaint or opinion related to the conditions or compensation of public employment or their betterment, all free from any and all restraint, interference, coercion, discrimination or reprisal.
Article XVI, Section 1, of the agreement further provides a standard three-step grievance procedure , culminating in final and binding arbitration or an Act 78 hearing, at the union's option, if "any differences, disputes or complaints arise as to the meaning of application of the provisions of this Agreement." Section 1(C) states: "The demand for one procedure shall act as a firm and final waiver of the...
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