Ruppal v. Department of Treasury, Docket No. 90912

• Decision Date: 30 December 1987
• Docket Number: Docket No. 90912
• Citation: 163 Mich.App. 219,413 N.W.2d 751,45 Fair Empl.Prac.Cas. (BNA) 278
• Parties: Roger A. RUPPAL, Plaintiff-Appellee, v. DEPARTMENT OF TREASURY, Department of Civil Service, Director of the Department of Treasury and State Personnel Director, jointly and severally, Defendants- Appellants. 163 Mich.App. 219, 413 N.W.2d 751, 45 Fair Empl.Prac.Cas. (BNA) 278
• Court: Court of Appeal of Michigan — District of US

Page 751

413 N.W.2d 751

Roger A. RUPPAL, Plaintiff-Appellee, v. DEPARTMENT OF TREASURY, Department of Civil Service Director of the Department of Treasury and State Personnel Director, jointly and severally, Defendants- Appellants.

Docket No. 90912.

163 Mich.App. 219, 413 N.W.2d 751,

45 Fair Empl.Prac.Cas. (BNA) 278

Court of Appeals of Michigan.

Submitted Dec. 11, 1986.

Decided Sept. 21, 1987.

Released for Publication Oct. 28, 1987.

Leave to Appeal Denied Dec. 30, 1987.

[163 MICHAPP 221] Beier, Howlett, Hayward, McConnell, McCann, Jones, Kingsepp & Shea by Charles J. Porter, Bloomfield Hills, for plaintiff-appellee.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Gary P. Gordon and Merry A. Rosenberg, Asst. Attys. Gen., for defendants-appellants.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Felix E. League and Dianne Rubin, Asst. Attys. Gen., for amicus curiae Civil Rights Com'n and Dept. of Civil Rights.

Before MacKENZIE, P.J., and ALLEN and SHAMO, ^* JJ.

MacKENZIE, Presiding Judge.

Defendants appeal as of right from an order granting summary disposition in favor of plaintiff, MCR 2.116(C)(9) and (10), and ordering the Department of Treasury to promote plaintiff to the position of Auditor X with back pay. The court's order was based on its conclusion that plaintiff, a male, had been discriminated against when the department promoted Joanne Siegla, a female, pursuant to an affirmative action plan which had not been approved by the Michigan Civil Rights Commission. The Civil Rights Commission and the Department of Civil Rights [163 MICHAPP 222] filed an amicus curiae brief aligned with defendants' position. We reverse and remand.

The general background for the case begins in 1969, when studies undertaken by the Civil Service Commission, the Department of Civil Rights, and the Civil Rights Commission revealed that the numbers of women and minority state employees were not reflective of their representation within the state population. Among other findings, a 1971 report concluded that the Treasury Department was underrepresented in the number of women in higher level positions. In response to the 1971 report, then-Governor William Milliken issued Executive Directive 1971-8, which was aimed at discrimination in the state's workforce and which directed state departments to implement affirmative action programs. The following year, 1972, Congress amended Title VII, 42 U.S.C. Sec. 2000e et seq., to make it applicable to the states. Title VII prohibits employment discrimination, inter alia, on the basis of sex, but permits reasonable voluntary affirmative action programs. See United Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), Johnson v. Transportation Agency, Santa Clara County, California, 480 U.S. ----, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987). Following Congress' amendment of Title VII, then-Governor Milliken signed Executive Directive 1975-3, which again directed implementation of affirmative action programs by each state department. Additionally, Executive Directive 1975-3 directed the establishment of the Michigan Equal Employment Opportunities Council (MEEOC) [later titled Michigan Equal Employment and Business Opportunity Council (MEEBOC) ]. MEEOC's duties included review of affirmative action progress and the development of guidelines for affirmative action plans for state departments.

[163 MICHAPP 223] In 1976, the Michigan Legislature enacted the Civil Rights Act, M.C.L. Sec. 37.2101 et seq.; M.S.A. Sec. 3.548(101) et seq. Section 202 of that act, M.C.L. Sec. 37.2202(1)(a); M.S.A. Sec. 3.548(202)(1)(a), prohibits, inter alia, employment discrimination based on sex. Section 210 of the act, M.C.L. Sec. 37.2210; M.S.A. Sec. 3.548(210), provides that an employer may carry out a voluntary affirmative action plan "if the plan is filed with the [Civil Rights] commission under the rules of the commission and the commission approves the plan."

In 1979, the Equal Employment Opportunity Commission (EEOC), the agency charged with enforcement of Title VII, established guidelines to regulate the application of voluntary affirmative action programs. 29 CFR 1608.1 et seq. The same year, then-Governor Milliken issued Executive Directive 1979-2, "reaffirm[ing] the state's commitment to provide equal employment opportunities throughout state government."

In March, 1983, Governor Blanchard signed Executive Order 1983-4, which again reaffirmed the state's commitment to affirmative action. The executive order also designated a state affirmative action officer and restated the duties of MEEBOC. Item No. 10 of this order provided:

"The Civil Rights Commission and the Civil Service Commission shall pre-review departmental affirmative action plans to assure compliance with the principles of equal employment opportunity and the principles of merit employment."

Governor Blanchard issued a similar executive order, 1985-2, in May, 1985.

The department's affirmative action plan at issue in this case was adopted in September, 1983. According to the department's Equal Employment [163 MICHAPP 224] Opportunity Officer, the plan was developed in reliance upon the EEOC and MEEOC guidelines noted above and received MEEOC approval. The plan indicated that women were underrepresented in upper level auditor positions within the department and stated the goal of hiring two women in the Auditor X classification. It is undisputed that although this plan was put into effect, it was never approved by the Civil Rights Commission as required by Sec. 210 of the Civil Rights Act. The record is silent as to whether it underwent commission review under Executive Order 1983-4.

On or about February 20, 1984, an Auditor X position within the department's Pontiac district office was posted. Following written and oral examinations, plaintiff and Siegla, along with others, were certified as qualified for the position, with plaintiff receiving a "highly qualified" rating and Siegla receiving a "qualified" rating. Siegla was ultimately hired for the position, apparently in September, 1984.

Plaintiff filed a grievance with the Department of Civil Service following Siegla's appointment. A grievance decision dated March 29, 1985, determined that Siegla's appointment did not violate civil service rules or policies.

Plaintiff commenced the instant circuit court action on October 1, 1985, seeking review of the grievance decision, injunctive relief and back pay, and attorney fees. On December 18, 1985, plaintiff filed a motion for summary disposition, arguing that he had been discriminated against on the basis of sex contrary to Sec. 202 of the Civil Rights Act since the department's affirmative action plan--pursuant to which Siegla was appointed--had not been approved by the Civil Rights Commission and thus was void under Sec. 210 of the same act. Defendants filed a cross-motion for summary disposition,[163 MICHAPP 225] arguing that the plan was developed in compliance with state and federal regulations and was therefore valid. Following a hearing, the trial court ruled that because the department's affirmative action plan lacked Civil Rights Commission approval it was invalid, and any appointments made pursuant thereto were likewise invalid as acts of discrimination. Accordingly, the trial court ordered that plaintiff be appointed to the position of Auditor X with back pay. Additionally the court awarded plaintiff $6,944.30 in costs and attorney fees.

On appeal, defendants, along with the Civil Rights Commission and Department of Civil Rights, contend that the trial court erred in granting summary disposition in favor of plaintiff. Plaintiff, on the other hand, steadfastly maintains that the department's use of an unapproved affirmative action plan resulted in unlawful discrimination based on sex. We agree with plaintiff that, pursuant to Sec. 210, the department was required to file and obtain approval of its affirmative action plan with the Civil Rights Commission. The department did not do so. Nevertheless, it does not follow that summary disposition in favor of plaintiff was proper.

Initially, we note that insofar as the trial court's ruling was based on MCR 2.116(C)(9), it was erroneous. Documentary evidence filed in the action, including defendants' answers to plaintiff's request for admissions, was clearly relied upon by the trial court in deciding the motion, contrary to MCR 2.116(G)(5).

A motion for summary disposition under MCR 2.116(C)(10), formerly GCR 1963, 117.2(3), tests the factual sufficiency of a claim or defense. The court is to consider affidavits, pleadings, depositions, and other documentary evidence submitted by the parties.[163 MICHAPP 226] Partrich v. Muscat, 84 Mich.App. 724, 730, 270 N.W.2d 506 (1978). The benefit of any reasonable doubt is given to the party opposing the motion and the court may only grant the motion if it is impossible for the claim or defense to be supported at trial because of a deficiency which cannot be overcome. Rizzo v. Kretschmer, 389 Mich. 363, 372, 207 N.W.2d 316 (1973). The courts are liberal in finding that a genuine issue does indeed exist. Hawkins v. Peoples Federal Savings & Loan Ass'n, 155 Mich.App. 237, 399 N.W.2d 484 (1986).

In this case, plaintiff's basic claim is that he was discriminated against on the basis of sex in violation of Sec. 202 of the Civil Rights Act. To sustain a claim under this section, a plaintiff must make a prima facie showing of discrimination, either by disparate treatment or intentional discrimination. See, e.g., Schipani v. Ford Motor Co, 102 Mich.App. 606, 617, 302 N.W.2d 307 (1981), and Bryant v. Automatic Data Processing, Inc., 151 Mich.App. 424, 428, 390 N.W.2d 732 (1986). Here, the trial court apparently believed that plaintiff had made such a prima facie case with a showing that the department's affirmative action plan had not been approved by the Civil Rights Commission, as required by Sec....