Victorson v. Department of Treasury, Docket No. 109225

• Decision Date: 09 May 1990
• Docket Number: Docket No. 109225
• Parties: Richard J. VICTORSON, Plaintiff-Appellee, v. DEPARTMENT OF TREASURY, Michigan Department of Civil Service, Director of the Department of Treasury, State Personnel Director, Michigan Department of Civil Rights, and Michigan Civil Rights Commission, jointly and severally, Defendants-Appellants. 183 Mich.App. 318, 454 N.W.2d 256, 58 Empl. Prac. Dec. P 41,459
• Court: Court of Appeal of Michigan — District of US

Page 256

454 N.W.2d 256

Richard J. VICTORSON, Plaintiff-Appellee, v. DEPARTMENT OF TREASURY, Michigan Department of Civil Service, Director of the Department of Treasury, State Personnel Director, Michigan Department of Civil Rights, and Michigan Civil Rights Commission, jointly and severally Defendants-Appellants.

Docket No. 109225.

183 Mich.App. 318, 454 N.W.2d 256, 58 Empl. Prac. Dec. P

41,459

Court of Appeals of Michigan.

Submitted July 12, 1989.

Decided April 16, 1990.

Released for Publication May 9, 1990.

[183 MICHAPP 319] Charles J. Porter, P.C. 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 Department of Treasury.

Felix E. League and Dianne Rubin, Asst. Attys. Gen., for Department of Civil Rights and the Civil Rights Comm'n.

Before SHEPHERD, P.J., and BEASLEY and GRIBBS, JJ.

GRIBBS, Judge.

Defendants appeal as of right from the trial court's order granting in part plaintiff's motion for summary disposition pursuant to MCR [183 MICHAPP 320] 2.116(C)(10). The trial court found that defendants' failure to seek approval from the Civil Rights Commission of its voluntary affirmative action plan as required by M.C.L. Sec. 37.2210; M.S.A. Sec. 3.548(210) rendered the plan void. The trial court also found that the implementation of the void plan and the plan's effect on plaintiff constituted sex discrimination under the Civil Rights Act, M.C.L. Sec. 37.2101 et seq.; M.S.A. Sec. 3.548(101) et seq., and awarded plaintiff $14,434.76 in damages. We affirm.

Plaintiff had been an employee of defendant Department of Treasury since 1967. In May of 1983 plaintiff applied for a promotion to an auditor IX level position. Plaintiff had taken two tests to become eligible for this position. On the written exam plaintiff scored in the "highly qualified" level. On the oral exam/interview plaintiff was the highest scored applicant.

Joanne Siegla also applied for the auditor IX level position. Siegla scored a "qualified" on the written test. Unlike the other applicants, Siegla was never given a score for her oral exam/interview. Siegla was hired to fill the level IX position in July of 1983. The department promoted Siegla on the basis of her sex pursuant to a 1979 affirmative action plan which was designed to rectify the underutilization of women and minorities in upper level positions within the Michigan Department of Treasury. In the absence of an affirmative action plan there is no question that the promotion of Ms. Siegla would constitute prima facie evidence of gender discrimination against plaintiff for which a cause of action would lie.

It is also undisputed that the affirmative action plan which the Department of Treasury used when it promoted Ms. Siegla had not been approved by the Civil Rights Commission. Defendants, both at the trial court level and at oral argument before [183 MICHAPP 321] this Court, did mention that other civil rights organizations had approved the plan and that a member of the commission had been informed of the plan. However no argument below or on appeal has been made that any "de facto" approval or waiver of the approval process had been made. See Baker v. Detroit, 483 F.Supp. 930, 994 (ED Mich, 1979), aff'd sub. nom. Bratton v. Detroit, 704 F.2d 878 (CA 6, 1983), cert. den. 464 U.S. 1040, 104 S.Ct. 703, 79 L.Ed.2d 168 (1984).

Thus the only issue before us is whether a voluntary affirmative action plan which does not have the prior approval of the Civil Rights Commission is automatically invalid.

The Civil Rights Act provides that an employer may not discriminate against an employee on the basis of religion, race, color, national origin, age, sex, height, weight, or marital status, M.C.L. Sec. 37.2202(1); M.S.A. Sec. 3.548(202)(1).

Section 210 of the act 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. [M.C.L. Sec. 37.2210; M.S.A. Sec. 3.548(210).]

Our resolution of the impact of noncompliance with Sec. 210 on an affirmative action plan requires us to address a conflict in decisions which currently exists in this Court.

In Ruppal v. Dep't of Treasury, 163 Mich.App. 219, 413 N.W.2d 751 (1987), lv. den. 429 Mich. 891 (1987), a panel of this Court held that noncompliance with Sec. 210 did not render a voluntary affirmative action plan void. The Ruppal case involved [183 MICHAPP 322] the promotion of Joanne Siegla pursuant to a Department of Treasury affirmative action plan which was instituted in September, 1983, and for which prior approval of the Civil Rights Commission was not sought.

The Ruppal Court interpreted Sec. 210 as a complete defense to be asserted by an employer when sued for an action taken pursuant to a voluntary affirmative action. The absence of prior commission approval, according to Ruppal, requires an employer to prove the legality of the plan to the trial court to avoid summary disposition. The Ruppal Court reasoned that to find an unapproved plan completely void ignores the overall purpose of the Civil Rights Act and fails to take into account the public employer's affirmative duty under the United States Constitution to implement such programs. See also Kulek v. Mt. Clemens, 164 Mich.App. 51, 416 N.W.2d 321 (1987).

In Van Dam v. Civil Service Bd. of Grand Rapids, 162 Mich.App. 135, 412 N.W.2d 260 (1987), a panel of this Court held that an affirmative action plan for which no prior Civil Rights Commission approval had been sought was void under Sec. 210. The Van Dam Court found that the language of Sec. 210 was clear and unambiguous and that an affirmative action plan may be implemented only if prior commission approval is given. The Van Dam Court further stated that such a procedure ensures that "reverse discrimination" will be condoned only within the bounds tolerated by society.

Our review of the language of Sec. 210 and its legislative history compels us to conclude that a literal reading of the statute leads to the conclusion that affirmative action plans are permitted only if prior approval is obtained from the Civil Rights Commission.

It is a standard rule of statutory construction [183 MICHAPP 323] that every word or phrase in a statute should be accorded its plain and ordinary meaning. Berry v. City of Belleville, 178 Mich.App. 541, 548, 444 N.W.2d 222 (1989). When the language of a statute is clear and unambiguous, judicial interpretation is neither required nor permitted. City of Lansing v. Lansing Twp., 356 Mich. 641, 648-649, 97 N.W.2d 804 (1959); Action Auto, Inc. v. Anderson, 165 Mich.App. 620, 628, 419 N.W.2d 36 (1988), lv. den. 430 Mich. 873 (1988); National Exposition Co. v. Detroit, 169 Mich.App. 25, 29, 425 N.W.2d 497 (1988), lv. den. 432 Mich. 853 (1989).

The mere fact that a statute appears impolitic or unwise is not sufficient for judicial construction but is a matter for the Legislature. City of Lansing, 356 Mich. at 648, 97 N.W.2d 804. The Legislature is presumed to be familiar with the rules of statutory construction. Joe Dwyer, Inc. v. Jaguar Cars, Inc., 167 Mich.App. 672, 684, 423 N.W.2d 311 (1988). The Legislature must have intended the meaning it plainly expressed and the statute must be enforced as written. Smith v. Ruberg, 167 Mich.App. 13, 16, 421 N.W.2d 557 (1988). "The wisdom of the provision in question in the form in which it was enacted is a matter of legislative responsibility with which courts may not interfere." Melia v. Employment Security Comm., 346 Mich. 544, 561, 78 N.W.2d 273 (1956).

It is our opinion that Sec. 210 clearly and unambiguously provides that a voluntary affirmative action plan which has not been approved by the commission is invalid. The statute states that such plans may be used only if they have been approved by the commission. This reading of the statute is supported by Sec. 705, which states:

(2) This act shall not be interpreted as restricting the implementation of approved plans, programs,[183 MICHAPP 324] or services to eliminate discrimination and...