Victorson v. Department of Treasury

• Decision Date: 17 March 1992
• Docket Number: No. 14,Docket No. 88975,14
• Citation: 482 N.W.2d 685,439 Mich. 131
• 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. Calendar439 Mich. 131, 482 N.W.2d 685, 58 Empl. Prac. Dec. P 41,421
• Court: Michigan Supreme Court

Page 685

482 N.W.2d 685

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. 88975.

Calendar No. 14.

439 Mich. 131, 482 N.W.2d 685, 58 Empl. Prac. Dec. P 41,421

Supreme Court of Michigan.

Argued Oct. 10, 1991.

Decided March 17, 1992.

[439 MICH 133] Charles J. Porter, P.C. by Charles J. Porter, Bloomfield Hills, for plaintiff-appellee.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Counsel of Record, Robert L. Willis, Asst. Atty. Gen., Dianne Rubin, Leo H. Friedman, Deborah A. Devine, Asst. Attys. Gen., Detroit, for defendants-appellants.

OPINION

MALLETT, Justice.

We granted leave to determine whether an employer, who implements an affirmative action plan that has not been formally approved by the Civil Rights Commission pursuant to M.C.L. Sec. 37.2210; M.S.A. Sec. 3.548(210) ¹ is guilty of discrimination as a matter of law. We hold that such conduct is not itself discriminatory.

We therefore reverse the decision of the Court of Appeals and remand to the circuit court for further consideration.

Facts

Richard Victorson, a high school graduate, began his employment with the Department of Treasury as an auditor in 1967. ² In 1982, Victorson took the Professional Managers and Administrators examination on which he received a "highly qualified" rating. ³ This rating made him eligible for any position within the department for which he was qualified. In May of 1983, he applied for a promotion from an Auditor VII to an Auditor IX position available in Ann Arbor, Michigan. Victorson was given a structured oral interview and received the highest score of all applicants interviewed. As a result of both his score on the PMA examination and his oral interview, Victorson was initially recommended for the position.

Ms. Joan Siegla, a Certified Public Accountant and the holder of a master's degree in accounting, began her career as an auditor in 1974. Siegla received a "qualified" rating on the PMA examination. Initially, Siegla did not apply for the Auditor IX position because she thought it would require relocating her residence. After the oral interviews were completed, Siegla was informed by the Department of Treasury's equal employment opportunity officer that relocation was not necessary. Siegla indicated she would be interested in the position and an interview was scheduled. She was interviewed by Mr. Victorson's interviewers, but was not given a score. Recommended by the oral interviewers, Siegla was appointed to the Auditor IX position over Victorson. ⁴ Ms. Siegla's promotion was made pursuant to the Department of Treasury 1979 voluntary affirmative action plan. ⁵ The 1979 affirmative action plan under which Siegla was promoted was not approved by the Civil Rights Commission. ⁶

Richard Victorson brought suit in the Oakland Circuit Court, alleging among other things that the affirmative action plan under which Siegla was promoted was void because it had not been approved by the Civil Rights Commission.

On cross motions for summary disposition, the circuit court granted partial summary disposition in favor of Victorson. The court found that the department's failure to obtain prior approval from the Civil Rights Commission rendered the plan void. The court further found that implementation and utilization of the affirmative action plan constituted sex discrimination in violation of the Civil Rights Act, M.C.L. Sec. 37.2202; M.S.A. Sec. 3.548(202), and awarded Victorson more than $14,000 in damages. Further proceedings were stayed pending the Department of Treasury's appeal to the Court of Appeals.

The Court of Appeals affirmed the decision of the circuit court. Victorson v. Dep't of Treasury, 183 Mich.App. 318, 454 N.W.2d 256 (1990) (Shepherd, J., dissenting), holding that Sec. 210 clearly and unambiguously provides that a voluntary affirmative action plan which has not been approved by the Civil Rights Commission is invalid.

This Court granted leave to appeal by order dated March 22, 1991. 437 Mich. 925.

I

We are called upon to determine whether the absence of Civil Rights Commission approval renders employment decisions made pursuant to unapproved voluntary affirmative action plans discriminatory as a matter of law in violation of Michigan's Civil Rights Act. ⁷ Resolution of this issue will depend upon construction of Sec. 210, which 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).

It is a fundamental rule of statutory construction that where the language of a statute is clear and unambiguous, no judicial interpretation is warranted. City of Livonia v. Dep't of Social Services, 423 Mich. 466, 487, 378 N.W.2d 402 (1985). However, judicial construction is permitted where the language of a statute is unclear and susceptible to more than one interpretation. State Treasurer v. Wilson, 423 Mich. 138, 144, 377 N.W.2d 703 (1985). When construing a statute, this Court is obligated to ascertain and give effect to the intention of the Legislature. Thornton v. Allstate Ins. Co., 425 Mich. 643, 391 N.W.2d 320 (1986). Legislative intent may be determined by considering the language and general scope the act seeks to accomplish or the evil it seeks to remedy. Longstreth v. Gensel, 423 Mich. 675, 377 N.W.2d 804 (1985).

Our courts have come to conflicting conclusions regarding Sec. 210. In Van Dam v. Civil Service Bd. of Grand Rapids, 162 Mich.App. 135, 412 N.W.2d 260 (1987), the Court of Appeals addressed the issue whether the Civil Rights Act required submission of affirmative action plans in order for the plan to receive protection under the act. The trial court granted the defendant's motion for summary disposition, finding that M.C.L. Sec. 37.2210; M.S.A. Sec. 3.548(210) was void of any language indicating the absolute necessity of submitting an affirmative action plan for approval. The Court of Appeals reversed. Finding that the language of Sec. 210 was clear and unambiguous, the Court of Appeals stated that "[o]nly the decision whether or not to initiate an affirmative action plan is discretionary.... Clearly, once a plan is initiated, submission of the plan to the commission becomes mandatory." Van Dam at 139, 412 N.W.2d 260.

The Court of Appeals came to a contrary conclusion in Ruppal v. Dep't of Treasury, 163 Mich.App. 219, 413 N.W.2d 751 (1987). At issue in Ruppal was whether the defendant had been discriminated against on the basis of sex in violation of M.C.L. Sec. 37.2202(1)(a); M.S.A. Sec. 3.548(202)(1)(a) ⁸ because the promotion of a female employee was made pursuant to an unapproved affirmative action plan in violation of Sec. 210. The trial court granted the plaintiff's motion for summary judgment. Reversing, the Court of Appeals found that Sec. 210 did require plans to be filed with and approved by the Civil Rights Commission, but held that failure to obtain commission approval does not result in summary disposition in favor of the plaintiff. Citing J.F. Cavanaugh & Co. v. Detroit, 126 Mich.App. 627, 337 N.W.2d 605 (1983), the Court of Appeals opined that an employer's failure to obtain commission approval precludes the employer from invoking the act's protection. These opposite interpretations lead us to conclude that Sec. 210 is at least arguably ambiguous and therefore subject to judicial construction. 2A Sands, Sutherland Statutory Construction (4th ed.), Sec. 46.04, p. 87.

Originally, Sec. 210 provided that voluntary affirmative action plans could be adopted if the plan was filed with the commission and the commission did not disapprove the plan. HB 4055, Sec. 20. We agree with the Court of Appeals in the present case that the current Sec. 210 contemplates an active role for the commission. We also agree that this active role indicates that the implementation only of approved plans was contemplated by the Legislature.

Similarly, a review of the original and current versions of Sec. 705, which construes the act, further supports our conclusion that Sec. 210 requires prior approval. Section 705 originally provided:

"Nothing in this act shall be interpreted as restricting the implementation of affirmative action programs to eliminate discrimination and the effects thereof when appropriate." HB 4055, Sec. 68(2).

There is no reference to approved plans. The current version of Sec. 705 was slightly modified, and provides:

"This act shall not be interpreted as restricting the implementation of approved plans, programs, or services to eliminate discrimination and the effects thereof when appropriate." M.C.L. Sec. 37.2705(2); M.S.A. Sec. 3.548(705)(2). (Emphasis added.)

We believe that by enacting the Civil Rights Act, specifically Sec. 210, it was the intention of the Legislature to encourage persons subject to the act to voluntarily take steps toward assuring equal opportunity in employment and to be free from charges of discrimination by requiring such plans to be filed with and approved by the Civil Rights Commission before implementation. We also believe that the Legislature, by requiring preapproval, intended to be sure that these plans did not unnecessarily trammel the rights of nonminority employees.

II

Although we find that commission preapproval is required by Sec. 210, we are not persuaded that employment decisions made pursuant to unapproved plans constitute, as a matter of law, discrimination violative of Michigan's Civil Rights Act.

The act does not make reference to unapproved...