Sharp v. City of Lansing

• Decision Date: 17 July 2001
• Docket Number: Docket No. 116171, Calendar No. 3.
• Parties: David SHARP, Plaintiff-Appellant, v. CITY OF LANSING, Defendant-Appellee.
• Court: Michigan Supreme Court

629 N.W.2d 873

464 Mich. 792

David SHARP, Plaintiff-Appellant, v. CITY OF LANSING, Defendant-Appellee.

Docket No. 116171, Calendar No. 3.

Supreme Court of Michigan.

Argued November 14, 2000.

Decided July 17, 2001.

Hankins & Flanigan, P.C., (by Jayne M. Flanigan), Okemos, for the plaintiff.

Plunkett & Cooney, P.C., (by Mary Massaron Ross and David K. Otis), Detroit, for the defendant.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Katherine C. Galvin, Assistant Attorney General, Lansing, for amicus curiae the State of Michigan and Office of the State Employer.

Jennifer M. Granholm, Attorney General, Theodore E. Hughes, Assistant Attorney General, Ron D. Robinson, Assistant-in-Charge, and Cynthia M. Nu nez, Assistant Attorney General, Detroit, for amicus curiae the Michigan Civil Rights Commission and Michigan Department of Civil Rights.

OPINION

PER CURIAM.

In this case, Plaintiff David Sharp brought a reverse discrimination claim against the city of Lansing for its use of an affirmative action plan in hiring decisions. Plaintiff alleged violations of the Michigan Civil Rights Act (CRA)¹ and the Equal Protection Clause of the Michigan Constitution². The trial court granted summary disposition for the city, finding plaintiff's claims barred by the "safe harbor" provision of M.C.L. § 37.2210. The Court of Appeals upheld the dismissal.³ 238 Mich. App. 515, 606 N.W.2d 424 (1999).

It is beyond question that the safe harbor of the CRA shields a public employer with a Civil Rights Commission-approved affirmative action plan from liability under the CRA for acts undertaken pursuant to that plan. Principally at issue is whether the safe harbor provision also shields such an employer from constitutional equal protection challenges. We hold that it does not. We affirm in part the decision of the Court of Appeals, reverse it in part, and remand the case to the trial court.

I BACKGROUND

Plaintiff wanted to be a firefighter with the city of Lansing Fire Department. He believed himself qualified, since he was a certified firefighter and the fire chief in Onondaga Township. For six consecutive years, 1990-1995, he applied for a firefighter position with the city. Each time he was denied employment. He believes that the city wrongfully refused to hire him because he is a Caucasian male.

The reason for the repeated rejection, according to Sharp, was the city's affirmative action plan.⁴ The plan was formally approved by the Civil Rights Commission in April 1987, pursuant to § 210 of the CRA. That provision generally encourages employers to implement voluntary affirmative action plans and sets forth a procedure for doing so.

Plaintiff sued the city, seeking damages, an injunction barring further use of the affirmative action plan, and a position with the city fire department. He argued that § 210 did not bar his claim and that the city's plan operated unconstitutionally with respect to him. Defendant disagreed and moved for summary disposition on the ground that the safe harbor of § 210 precluded all liability. The trial court granted the motion before the close of discovery, relying on MCR 2.116(C)(8), (10). It concluded that the CRA provided the exclusive remedy for discrimination claims in the state and, therefore, such a claim was barred in this instance.

The Court of Appeals affirmed the trial court's grant of summary disposition, relying on Cole v. General Motors Corp.⁵ The panel believed that it was bound by the precedent of Cole; but disagreed with the reasoning employed there. It stated:

Because plaintiff does not challenge the constitutionality of the Civil Rights Act itself, but only the validity of defendant's affirmative action plan and the actions of defendant employer, we believe that the ruling in Cole effectively resolves plaintiff's claim in this case. Were it not for the Cole decision, however, we would reach a different result. [238 Mich.App. at 519, 606 N.W.2d 424.]

If working from "a clean slate," the Court of Appeals majority⁶ added, it would not interpret § 210 as providing defendant employer with a shield from liability. Instead, it would have subjected the plan itself to constitutional review and would have held that § 210 does not "automatically" confer immunity from statutory liability under the CRA. We granted plaintiff's application for leave to appeal.

Plaintiff argues that the city's affirmative action plan should not have been approved. He asserts that the plan delegates too much authority to the city by allowing the city to make changes to it without commission approval. He contends, also, that the trial court erred by granting summary disposition before discovery ended. A genuine issue of fact exists, he argues, about whether the plan ever received approval from the commission. Finally, he challenges the lower court's decision that § 210 completely immunizes defendant's actions taken in accordance with its approved affirmative action plan.

II ANALYSIS

This case involves the interplay of the Equal Protection Clause of our constitution and the statutory framework of the CRA. Art 1, § 2 guarantees Michigan citizens the right to be free from racial discrimination in employment by state actors. That clause provides:

No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation.

The CRA extended these protections to employment in the private sector. Thus, it prohibits racial employment discrimination by private and government employers⁷, while creating a damages remedy⁸ for those victimized by unlawful employment acts.

Section 210 of the CRA invites employers to implement their own affirmative action policies. Under this section, an employer's actions that would otherwise violate the CRA are permissible, provided they are taken pursuant to an affirmative action plan properly approved by the commission. Section 210 provides:

A person subject to this article may adopt and carry out a plan to eliminate present effects of past discriminatory practices or assure equal opportunity with respect to religion, race, color, national origin, or sex if the plan is filed with the commission under rules of the commission and the commission approves the plan.

We presume that the Legislature intended the unequivocal meaning expressed in § 210. See Nation v. W.D.E. Electric Co., 454 Mich. 489, 494, 563 N.W.2d 233 (1997). It provides a safe harbor for public and private employers who act in accordance with properly approved affirmative action plans. However, the safe harbor does not shield against all claims. It merely protects employers from liability under the CRA for doing precisely what the statute itself invites them to do.

In support of its motion for summary disposition, defendant presented affidavits showing that its hiring decisions had been made pursuant to an affirmative action plan approved by the Civil Rights Commission in 1987. Plaintiff does not dispute that the commission approved defendant's 1987 plan. Rather, he argues that a genuine issue of material fact exists whether defendant actually used the approved plan in making hiring decisions between 1990 and 1995. Plaintiff contends that defendant followed different and unapproved plans when making the hiring decisions at issue. Moreover, he asserts, the commission "exceeded its authority" by giving to defendant the discretion periodically to adjust its hiring goals without commission approval.

The essence of plaintiff's position is that defendant's periodic revision of its hiring goals after 1987 resulted in the establishment of new affirmative action plans. He argues that these plans should have been submitted for commission approval. However, plaintiff has offered no factual support for his assertions. Accordingly, he has failed to create a genuine issue of material fact whether defendant relied on a series of separate, unapproved plans in making the hiring decisions at issue. Moreover, he has not established that further discovery would uncover support for that assertion. Therefore, we reject his argument that summary disposition entered prematurely with respect to the CRA claim.

In a related vein, plaintiff suggests that the commission erred in failing to make findings of fact and conclusions of law when it approved defendant's affirmative action plan. Plaintiff did preserve the issue whether the commission was required under the Administrative Procedures Act, M.C.L. § 24.285, to make findings of fact and conclusions of law. However, for the reasons set forth in the Court of Appeals decision, M.C.L. § 24.285 is not applicable to this case. 238 Mich.App. at 521, 606 N.W.2d 424. Accordingly, plaintiff has not preserved the issue whether the commission was required under § 210 to make findings of fact and conclusions of law. Thus, we conclude that the safe-harbor provision bars plaintiff's statutory claims against the city.

But our inquiry does not end there. A state actor is involved. Consequently, the protections provided directly by the state Equal Protection Clause come into play. When an aggrieved plaintiff alleges that a public employer denied his equal protection rights in violation of art. 1, § 2, the employer's acts are subject to review under that constitutional provision. Injunctive and declaratory relief are available to restrain any acts found to violate the state Equal Protection Clause.⁹ Hence, the mere existence of an approved affirmative action plan does not insulate a state employer, or its plan, from all judicial scrutiny.

In this case, plaintiff sought constitutional relief, alleging that defendant's affirmative action plan violates art. 1, § 2.¹⁰ Defendant asserts that plaintiff did not vigorously pursue his...