Sankar v. Detroit Bd. of Educ.

• Citation: 160 Mich.App. 470,409 N.W.2d 213
• Decision Date: 17 July 1987
• Docket Number: Docket No. 84090
• Parties: Betty Ann SANKAR, Plaintiff-Appellee, v. DETROIT BOARD OF EDUCATION, William Ray Pruett, Delores Preston-Cooper and Erma Pritchard, Defendants-Appellants. 160 Mich.App. 470, 409 N.W.2d 213, 126 L.R.R.M. (BNA) 2092, 40 Ed. Law Rep. 1012
• Court: Court of Appeal of Michigan (US)

Page 213

409 N.W.2d 213

Betty Ann SANKAR, Plaintiff-Appellee, v. DETROIT BOARD OF EDUCATION, William Ray Pruett, Delores

Preston-Cooper and Erma Pritchard,

Defendants-Appellants.

Docket No. 84090.

160 Mich.App. 470, 409 N.W.2d 213, 126 L.R.R.M. (BNA) 2092,

40 Ed. Law Rep. 1012

Court of Appeals of Michigan.

Submitted Nov. 6, 1986.

Decided June 1, 1987.

Released for Publication July 17, 1987.

[160 MICHAPP 471] Sommers, Schwartz, Silver & Schwartz, P.C. by Joseph A. Golden, Southfield, for plaintiff-appellee.

[160 MICHAPP 472] Gordon J. Anderson, Detroit Bd. of Educ., and Riley & Roumell by George T. Roumell, Jr., and Daniel J. Bretz, Detroit, for defendants-appellants.

Before HOOD, P.J., and T.M. BURNS and THEILER, JJ.

PER CURIAM.

Defendants appeal by leave granted from a March 13, 1985, circuit court order which denied their motion for summary judgment pursuant to former GCR 1963, 117.2(1), now MCR 2.116(C)(8). Plaintiff was employed as a schoolteacher for Detroit Public Schools from 1960 until October 13, 1981, when she went on leave of absence. She later retired on June 1, 1983. On April 13, 1981, defendants gave plaintiff an unsatisfactory job performance evaluation which required, according to the terms of the collective bargaining agreement, that she be transferred to another school where she would have two semesters to improve her performance. Plaintiff and her union, the Detroit Federation of Teachers, protested the unsatisfactory performance evaluation through the collective bargaining agreement grievance procedures and pursued the grievance to "Step Four" of the procedure, but did not pursue the grievance to the final step of binding arbitration.

Plaintiff then filed suit in the circuit court against the Detroit Board of Education and others alleging three claims in tort for: (1) negligent evaluation; (2) conspiracy; and (3) intentional infliction of emotional distress. These claims all arise out of an alleged breach of the collective bargaining agreement. Defendants claimed below and again argue in this appeal that plaintiff's claims are based upon and are exclusively remediable [160 MICHAPP 473] under the collective bargaining agreement and that plaintiff is precluded from seeking relief in the circuit court because she failed to exhaust her remedies to the final step of binding arbitration. Defendants also urged below and on appeal that, even if the circuit court has jurisdiction to entertain plaintiff's complaint, each of the three tort claims pled are insufficient and fail to state a claim upon which relief may be granted. The trial court denied defendants' summary judgment ¹ motion and found that a legitimate issue of fact was present with regard to the tortious conduct alleged in the pleadings. We disagree and reverse the decision of the lower court and grant summary disposition in favor of defendants.

The collective bargaining agreement between the school board and the DFT contains a five-step grievance procedure. Step five provides for final and binding arbitration:

"STEP 5. If the Union is dissatisfied with the decision of the Board of Education, the Union may [160 MICHAPP 474] within twenty school days submit any grievance under this Agreement to final and binding arbitration under the labor arbitration rules of the American Arbitration Association, at the equal expense of the parties. The Union shall have exclusive authority in its discretion as to whether to appeal any grievance to arbitration."

However, step five also says that the grievance procedures are not the exclusive remedy for an aggrieved teacher:

"F. The grievance procedures provided in this Agreement shall be supplementary or cumulative to, rather than exclusive of, any procedures or remedies afforded to any teacher by law."

It is defendants' contention that the lower court erred in refusing to dismiss plaintiff's claims because they arose out of and were exclusively remediable by the collective bargaining agreement. It is true that the general rule is that an employee may not maintain an action against his employer for breach of a collective bargaining agreement unless he has exhausted his contractual grievance procedures. Smith v. Metropolitan Life Ins. Co., 107 Mich.App. 447, 309 N.W.2d 550 (1981); Grosse Pointe Farms Police Officers Ass'n v. MERC Chairman, 53 Mich.App. 173, 218 N.W.2d 801 (1974), lv. den. 392 Mich. 783 (1974). However, this Court has recognized exceptions to this general rule where a plaintiff is seeking remedies not created under the labor contract or where an employee's efforts to proceed with contractual remedies would be futile.

In Smith, supra, 107 Mich.App. at 451, 309 N.W.2d 550, this Court cited Glover v. St. Louis-S.F.R. Co., 393 U.S. 324, 330, 89 S.Ct. 548, 551, 21 L.Ed.2d 519 (1969), where the United States Supreme Court found that the plaintiffs, who alleged they were denied promotions due to racial [160 MICHAPP 475] discrimination, were not bound to exhaust contractual remedies where the complaint alleged that the union and the railroad were working together against the plaintiffs and that further efforts to pursue a contractual or administrative remedy would be futile. In Barry v. Flint Fire Dep't, 44 Mich.App. 602, 606, 205 N.W.2d 627 (1973), where the plaintiff asserted a constitutional violation of equal protection, Judge T.M. Burns wrote:

"It is axiomatic that an employee contesting his rights under a collective bargaining contract must insofar as possible exhaust the grievance procedures set forth in that contract before turning to the courts for relief. See for example Cortez v. Ford Motor Co., 349 Mich 108 (1957); Field v. Local 652 UAW AFL-CIO, 6 MichApp 140 (1967). The reason for the rule is both apparent and sound. A collective bargaining contract fashions certain rights between an employer and employee and also creates a method for resolving any future disputes arising out of these rights, in short, a grievance procedure. In the event of a disagreement over these particular contractually created rights, it is only reasonable and equitable that the parties settle their differences by the mutually agreed upon method specified in the labor contract before looking to the judiciary for assistance. The language and factual context of the cases in this area coupled with the foregoing rationale of the exhaustion rule, however, patently indicate that the exhaustion requirement is applicable only when an employee alleges a violation of his rights created under the labor contract."

In this case plaintiff's claims are pled as torts. If plaintiff's claims are found to state a cause of action in tort, Barry suggests that it would not be necessary for plaintiff to exhaust her contractual remedies prior to seeking judicial relief. However, [160 MICHAPP 476] the defendants point to the United States Supreme Court's recent decision in Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985), which holds that a state law tort claim arising from a collective bargaining agreement is preempted by the National Labor Relations Act, 29 U.S.C. Sec. 151 et seq. Defendants admit that the collective bargaining agreement in this case between the board and the DFT is governed by the Michigan public employment relations act, M.C.L. Sec. 423.201 et seq.; M.S.A. Sec. 17.455(1) et seq., and not by the NLRA. But they further point out that Michigan courts interpreting PERA have consistently looked to federal precedent developed under the NLRA. See Harris v. Amalgamated Transit Union, 122 Mich.App. 706, 709, 333 N.W.2d 1 (1982); DPOA v. Detroit, 391 Mich. 44, 53, 214 N.W.2d 803 (1974).

Whether or not we follow the federal precedent in Allis-Chalmers, our analysis of this case must begin with consideration of plaintiff's three claims to determine their legal sufficiency. As stated in Nicholson v. Han, 12 Mich.App. 35, 43, 162 N.W.2d 313 (1968):

" 'The authorities are uniform in holding that the nature of the action with respect to whether it is based on a breach of contract or sounds in tort must be determined by the gravamen, or essential facts or grievance as alleged, to be ascertained from a consideration of the pleading as a whole. 1 CJS, Actions, Sec. 46, p 1100.' Williamson v Pacific Greyhound Lines (1944), 67 Cal App 2d 250 (153 P2d 990, 992)."

Thus, at the summary disposition stage, the Michigan courts will look beyond the face of a plaintiff's pleadings to determine the gravamen or gist of the cause of action contained in the complaint.

As to plaintiff's negligent evaluation claim, her [160 MICHAPP 477] complaint alleges that defendants "negligently and in violation of the contract ... maliciously and without just cause evaluated Plaintiff's performance as a teacher with the specific intent of causing Plaintiff's demotion and/or transfer." Plaintiff's complaint further sets forth bargaining agreement language and alleges that no conferences or discussions concerning her unsatisfactory performance had been held within the time limits prescribed in the collective bargaining agreement before her transfer. At her deposition, plaintiff testified that the gist of her complaint was that she disagreed with being rated unsatisfactory and that she was performing satisfactorily.

Plaintiff relies upon two cases which she asserts indicate that Michigan recognizes the tort of negligent evaluation of an employee. In Schipani v. Ford Motor Co., 102 Mich.App. 606, 302 N.W.2d 307 (1981), the plaintiff sued his employer alleging breach of contract, age discrimination, malicious and bad faith demotion, impairment of prospective economic opportunity, and failure to objectively evaluate his performance. As to the last count, the plaintiff alleged that the defendant periodically reviewed his job performance and had a duty to do so "in an objective manner," which duty the employer breached, thereby denying him placement on the defendant's list which would have assured a...