Walters v. Department of Treasury

• Decision Date: 05 May 1986
• Docket Number: Docket No. 79780
• Citation: 148 Mich.App. 809,385 N.W.2d 695
• Parties: Catherine M. WALTERS, Plaintiff-Appellant, v. Michigan DEPARTMENT OF TREASURY, Defendant-Appellee, and Robert A. Bowman, Treasurer of the State of Michigan, C. Joyce Curtis, Personnel Director of the Department of Treasury and Patricia L. Pickett, Equal Employment Opportunity Officer of the Department of Treasury, individually and in their official capacities, Defendants.
• Court: Court of Appeal of Michigan — District of US

Page 695

385 N.W.2d 695

148 Mich.App. 809

Catherine M. WALTERS, Plaintiff-Appellant, v. Michigan DEPARTMENT OF TREASURY, Defendant-Appellee and Robert A. Bowman, Treasurer of the State of Michigan, C Joyce Curtis, Personnel Director of the Department of Treasury and Patricia L. Pickett, Equal Employment Opportunity Officer of the Department of Treasury individually and in their official capacities, Defendants.

Docket No. 79780.

Court of Appeals of Michigan.

Submitted Oct. 2, 1985.

Decided Feb. 4, 1986.

Released for Publication May 5, 1986.

Pelavin, Pelavin & Powers, P.C. by Frumeth Brenda Hirsh, Flint, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Felix League, Asst. Atty. Gen. by Dianne Rubin, Asst. Atty. Gen., Detroit, for intervenor Dept. of Civil Rights on behalf of plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Todd H. Cohan, Asst. Atty. Gen., Lansing, for defendant-appellee.

Before KELLY, P.J., and ALLEN and SHUSTER ^*, JJ.

PER CURIAM.

Plaintiff, Catherine M. Walters brings this appeal as of right from a circuit court order granting accelerated judgment to defendant Michigan Department of Treasury (the Department) as to Count I of her complaint. Her subsequent motion for reconsideration was denied. On appeal, we are asked to decide whether the circuit court erred in granting the Department's motion for accelerated judgment on plaintiff's complaint that it discriminated against her on the basis of sex. We think the circuit court did err and we reverse its grant of accelerated judgment.

A.

Plaintiff is a classified employee who was hired by the Department of Treasury in October, 1976, as a "tax collection representative VII". In October, 1977, she was upgraded to the position of "tax collection representative IX". Plaintiff obtained a score of 93 on the civil service examination for "warrant officer VI" in February, 1980, and in May, 1981, she completed the civil service examination for "account examiner VII" with a score of 92.

In January, 1981, plaintiff was "on the register" for the positions of "tax collection representative X" and "tax collection representative XI", having scored 93 and 78 on the civil service examinations for those positions. When an opening for a warrant officer VI became available in the department, it was filled by Walter Roscoe, a white male. ¹

The Department interviewed plaintiff for the position of "account examiner VII" in January, 1983. The account examiner positions in Flint and Saginaw were, however, filled by James Sailor, a black male, and Walter Roscoe, a white male. In response, plaintiff filed a civil service grievance on January 25, 1983. The hearing officer denied the grievance in August, 1983, claiming that plaintiff failed to offer sufficient corroborating evidence on her allegations of sexual discrimination and harassment.

Plaintiff also filed employment discrimination charges against the Department before the Michigan Department of Civil Rights (DCR). The case was dismissed in August, 1983, because the DCR's investigation failed to disclose evidence of unlawful discrimination against plaintiff.

In September, 1983, plaintiff appealed by leave the disposition of her civil service grievance. In November, 1984, the Civil Service Commission's Employment Relations Board remanded plaintiff's sex discrimination grievance to the hearing officer for further hearing and decision. While the civil service appeal was still pending, plaintiff filed a complaint in Genesee County Circuit Court on December 6, 1983, naming the Department as defendant. In January, 1983, plaintiff filed an amended complaint, naming as defendants: Robert Bowman, Treasurer of the State of Michigan; C. Joyce Curtis, the Department's Personnel Director; and Patricia L. Pickett, Equal Employment Opportunity Officer of the Department. Four theories of recovery were asserted in the amended complaint: (1) that the Department violated the Elliott-Larsen Civil Rights Act by failing to follow its own affirmative action and equal opportunity policies, failing to promote plaintiff and failing to eliminate an atmosphere of sexual harassment; (2) that plaintiff's right to equal protection had been denied; (3) negligence; and (4) that plaintiff had been denied fair treatment in the course of investigations. Plaintiff requested damages and other equitable relief.

The Department answered the amended complaint in February, 1984. The Department and Bowman moved for accelerated judgment on Counts II through IV of the complaint, pursuant to GCR 1963, 116.1(1) and (2), asserting that exclusive jurisdiction for claims for money damages against the Department and its officers rested with the Court of Claims under M.C.L. Sec. 600.6419; M.S.A. Sec. 27A.6419. ² A second motion for accelerated judgment was filed by the Department, Bowman and Pickett in April, 1984, pursuant to GCR 1963, 116.1(2) and (5), alleging that the circuit court lacked subject-matter jurisdiction because: (1) plaintiff failed to exhaust her administrative remedies within the Civil Service Commission's grievances and appeals procedure for state employees; (2) the scope of review of a final decision of the Civil Service Commission precludes a de novo proceeding ; and (3) Const. 1963, art. 11, Sec. 5 provides plaintiff's exclusive remedy for a claim arising out of her relationship as a state classified employee, superseding the Elliott-Larsen Civil Rights Act remedies.

Following oral argument on the motions, the lower court determined that Counts II through IV were claims for money damages which were within the exclusive jurisdiction of the Court of Claims. On the second motion for accelerated judgment, the court found that plaintiff was required to exhaust her administrative remedies prior to instituting a circuit court action. Thus both motions for accelerated judgment were granted. In denying plaintiff's motion for reconsideration, the court agreed with the Department's position that a state classified employee such as plaintiff is not entitled to maintain a circuit court action under the Elliott-Larsen Civil Rights Act. Plaintiff appeals that portion of the order denying her access to circuit court for asserting an Elliott-Larsen Civil Rights Act claim.

B.

On appeal, plaintiff argues that the grant of accelerated judgment in favor of the Department was reversible error. Plaintiff insists that the Civil Service Commission does not have plenary authority in regard to all matters affecting state classified employees, including civil rights, under Const. 1963, art. 11, Sec. 5. She also asserts that it is unnecessary for a state classified employee to exhaust administrative remedies before pursuing a circuit court action for alleged violations of the classified employee's civil rights. Plaintiff concludes that the circuit court had jurisdiction to address her claims. The Department counters that the Civil Service Commission has plenary authority to resolve all claims of sex discrimination brought by state classified employees. Defendant urges that, to the extent Elliott-Larsen may be interpreted as applying to state classified employees, it is unconstitutional.

We hold that the circuit court had jurisdiction over plaintiff's claims against the Department based upon the Elliott-Larsen Civil Rights Act, because the Elliott-Larsen Civil Rights Act applies to state classified employees who may bring an original action against the state and its agencies in circuit court for violations of their civil rights. We further hold that plaintiff was not required to exhaust her administrative remedies within the Civil Service Commission before proceeding in circuit court on her Elliott-Larsen Civil Rights Act claim.

C.

The lower court granted accelerated judgment to the Department pursuant to GCR 1963, 116.1(2) and (5), finding that plaintiff had failed to exhaust her administrative remedies prior to instituting her Elliott-Larsen Civil Rights Act claim in circuit court. The lower court believed it was without subject-matter jurisdiction over plaintiff's cause of action. That finding was erroneous.

Plaintiff had the right to bring her sex discrimination claim in circuit court. Under the Elliott-Larsen Civil Rights Act, M.C.L. Sec. 37.2101 et seq.; M.S.A. Sec. 3.548(101) et seq., employers are prohibited from discriminating against individuals on the basis of sex. M.C.L. Sec. 37.2202; M.S.A. Sec. 3.548(202). The state, its subdivisions and agencies are "employers" covered by the act. M.C.L. Sec. 37.2103(f); M.S.A. Sec. 3.548(103)(f), M.C.L. Sec. 37.2201(a); M.S.A. Sec. 3.548(201)(a). The jurisdiction of the DCR and the circuit court is concurrent. ³ An individual may proceed simultaneously in both forums when asserting an employer's violation of the act. Constantinoff v. Bixby Hospital, 111 Mich.App . 575, 314 N.W.2d 698 (1981); Marsh v. Dep't of Civil Service, 142 Mich.App. 557, 561-562, 370 N.W.2d 613 (1985). Exhaustion of administrative remedies before the DCR is not a prerequisite to filing suit in circuit court. Marsh, supra, pp. 562-563, 370 N.W.2d 613.

The Department urges that a state classified civil service employee such as plaintiff is confined to the grievance procedures of the Civil Service Commission for his or her exclusive remedy under Const. 1963, art. 11, Sec. 5, which provides in pertinent part:

"The commission shall classify all positions in the classified service according to their respective duties and responsibilities, fix rates of compensation for all classes of positions, approve or disapprove disbursements for all personal services, determine by competitive examination and performance exclusively on the basis of merit, efficiency and fitness the qualifications of all candidates for positions in the classified service, make rules and regulations covering all personnel transactions, and regulate all conditions of employment in the classified...