Van Dam v. Civil Service Bd. of City of Grand Rapids

• Decision Date: 01 October 1987
• Docket Number: Docket No. 91426
• Citation: 45 Fair Empl.Prac.Cas. (BNA) 196,412 N.W.2d 260,162 Mich.App. 135
• Parties: John VAN DAM III, Plaintiff-Appellant, v. CIVIL SERVICE BOARD OF the CITY OF GRAND RAPIDS, Norman E. Jabin, David E. Post, Bobby Jones, John R. Simerick and Linda Samuelson, individually and as members of the Civil Service Board of the City of Grand Rapids, Andrew Vanderveen, individually and as Chief Examiner of the Civil Service Board of the City of Grand Rapids, and Leon Williams, individually and as Chief of the Fire Department of the City of Grand Rapids, Defendants-Appellees. 162 Mich.App. 135, 412 N.W.2d 260, 45 Fair Empl.Prac.Cas. (BNA) 196
• Court: Court of Appeal of Michigan — District of US

Page 260

412 N.W.2d 260

John VAN DAM III, Plaintiff-Appellant, v. CIVIL SERVICE BOARD OF the CITY OF GRAND RAPIDS, Norman E Jabin, David E. Post, Bobby Jones, John R. Simerick and Linda Samuelson, individually and as members of the Civil Service Board of the City of Grand Rapids, Andrew Vanderveen, individually and as Chief Examiner of the Civil Service Board of the City of Grand Rapids, and Leon Williams, individually and as Chief of the Fire Department of the City of Grand Rapids, Defendants-Appellees.

Docket No. 91426.

162 Mich.App. 135, 412 N.W.2d 260,

45 Fair Empl.Prac.Cas. (BNA) 196

Court of Appeals of Michigan.

Submitted April 7, 1987.

Decided Aug. 3, 1987.

Released for Publication Oct. 1, 1987.

[162 MICHAPP 136] Robert F. Mirque, P.C. (by Robert F. Mirque), Grand Rapids, for plaintiff-appellant.

G. Douglas Walton, Grand Rapids, for defendants-appellees.

Before WEAVER, P.J., and HOLBROOK and GILLESPIE, ^* JJ.

HOLBROOK, Judge.

Plaintiff appeals as of right from a circuit court order granting defendants summary disposition and dismissing plaintiff's claim of employment discrimination. Plaintiff asserted that the City of Grand Rapids' voluntary affirmative action plan violated the Civil Rights Act, M.C.L. Sec. 37.2010 et seq.; M.S.A. Sec. 3.548(101) et seq., because it had not been approved by the Michigan Civil Rights Commission, as allegedly required by statute. Plaintiff, a fire fighter applicant, was passed over for employment in favor of several women who had received lower test scores than he did. We agree with plaintiff's claim and reverse the summary disposition order.

In 1984, the Grand Rapids Civil Service Board approved the one-time use of a dual, gender-based [162 MICHAPP 137] eligibility list as an affirmative action effort to increase the number of female fire fighters. ¹ After taking the written test in 1984, plaintiff ranked thirty-fifth on the list of hires. However, the city selected eight men and eight women for the available positions. Several of the women chosen scored below plaintiff on the examination.

On March 25, 1985, plaintiff filed a two-count complaint in circuit court alleging a violation of the Civil Rights Act and negligence. Defendants answered, denying that they, or the voluntary affirmative action plan, had violated plaintiff's civil rights. Defendants subsequently moved for summary disposition pursuant to MCR 2.116(C)(8) and 2.116(C)(10).

At a hearing held on March 6, 1986, the defendants framed the only issue facing the court as being whether the Civil Rights Act mandated that an affirmative action program be submitted to the Michigan Department of Civil Rights for approval in order for the program to receive the act's protections. Defense counsel argued that the act, specifically M.C.L. Sec. 37.2210; M.S.A. Sec. 3.548(210), contains no language that would suggest that submission of an affirmative action plan for approval is absolutely required. Plaintiff's attorney countered that Sec. 210 explicitly states that, while a municipality need not initiate an affirmative action program, if it does then the plan must be submitted to the Civil Rights Commission for approval. Since the city had not submitted its gender-based eligibility plan [162 MICHAPP 138] to the commission for its approval, the plan was invalid. The trial court, however, agreed with defendants' argument and granted their motion. We find that the circuit court erred in interpreting Sec. 210.

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."

In dismissing plaintiff's claim, the circuit court interpreted the statute as being discretionary in nature, i.e., an affirmative action plan may, but need not, be submitted for approval. We believe that such a broad interpretation of the statute is contrary to its clear and unambiguous language.

A cardinal rule of statutory construction is that courts may not speculate as to the probable intent of the Legislature beyond the words employed in the statute. A word or a phrase in a statute is to be given its plain and ordinary meaning. Winiecki v. Wolf, 147 Mich.App. 742, 744, 383 N.W.2d 119 (1985). When the language of a statute is clear and unambiguous, judicial construction is neither required nor permitted. Such a statute must be applied, and not interpreted, since it speaks for itself. City of Lansing v. Lansing Twp., 356 Mich. 641, 648-649, 97 N.W.2d 804 (1959); Winiecki, supra; Attard v. Adamczyk, 141 Mich.App. 246, 250, 367 N.W.2d 75 (1985).

In the present case, the language of Sec. 210 is clear and unambiguous. It provides that a person (here, a municipality) may initiate an affirmative [162 MICHAPP 139] action plan, but is not required to do so. If a plan is initiated, however, it must be submitted to the Civil Rights Commission for approval before it can take effect. Only the decision whether or not to initiate an affirmative action plan is discretionary. Where defendants and the trial court erred was in construing the statute as giving the city discretion in submitting the plan for commission approval. Clearly, once a plan is initiated, submission of the plan to the commission becomes mandatory.

Requiring prior commission approval of an affirmative action plan would further the act's purpose of prohibiting discriminatory practices, rulings, and customs. As a general proposition, the act prohibits discrimination of any sort in the areas of housing, education, employment, et cetera M.C.L. Sec. 37.2102(1); M.S.A. Sec. 3.548(102)(1). However, the act recognizes that in some instances discrimination in favor of minorities is tolerable when it is employed to rectify past discriminatory practices. But, even this "reverse discrimination" is not without its limits. For example, some case authority has held that an affirmative action plan cannot require the discharge of nonminority workers and their replacement with minorities, it cannot create an absolute bar to the advancement of nonminority employees, and it must be temporary in nature and terminate when the under-utilization of minorities has been corrected. Vanguards of Cleveland v. City of Cleveland, 753 F.2d 479, 484 (CA 6, 1985). ² Submission of a plan for approval would allow the commission to review the plan and determine if it exceeds the bounds of tolerable reverse discrimination. Without this review and [162 MICHAPP 140] approval process, a person could discriminate against nonminorities to any extent and in clear violation of the act.

A similar issue was addressed by a panel of this Court in J.F. Cavanaugh & Co. v....