Watassek v. Michigan, Dept. of Mental Health

• Citation: 143 Mich.App. 556,372 N.W.2d 617
• Decision Date: 29 August 1985
• Docket Number: Docket No. 70906
• Parties: Frank A. WATASSEK, Plaintiff-Appellee, v. MICHIGAN, DEPARTMENT OF MENTAL HEALTH, Defendant-Appellant. 143 Mich.App. 556, 372 N.W.2d 617
• Court: Court of Appeal of Michigan (US)

Page 617

372 N.W.2d 617

Frank A. WATASSEK, Plaintiff-Appellee, v. MICHIGAN, DEPARTMENT OF MENTAL HEALTH, Defendant-Appellant.

Docket No. 70906.

143 Mich.App. 556, 372 N.W.2d 617

Court of Appeals of Michigan.

Submitted May 2, 1984.

Decided June 18, 1985.

Released for Publication

Aug. 29, 1985.

[143 MICHAPP 558] Gregory J. Stempien, P.C. by Gregory J. Stempien, Livonia, for plaintiff-appellee.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Solicitor Gen., and George L. McCargar and Craig Atchinson, Asst. Attys. Gen., for defendant.

Before SHEPHERD, P.J., and CYNAR and BORMAN ^*, JJ.

BORMAN, Judge.

The facts of this case are not in dispute. Plaintiff was employed as an Attendant Nurse 03 with the Department of Mental Health, from April 18, 1976, to May 20, 1976, at the Plymouth Center for Human Development ("Center"). While performing his duties, he began noticing acts of abuse being committed by fellow employees against the Center's residents. He informed his superior of this behavior. Thereafter, plaintiff's relationship with his fellow workers and the Center's administration declined and his employment at the Center was terminated. As a result of that termination, plaintiff claims that he has been unable to obtain gainful employment as a professional psychologist.

On May 20, 1976, plaintiff signed an "Employee Departure Report" form which noted his "separation" from the Medical Treatment Division of the Department of Mental Health and listed the reason given as "resignation". On that same date, a [143 MICHAPP 559] "Service Rating Report" was issued regarding plaintiff's service with the Department. That report stated:

"Since commencing his employment (April 18, 1976) with Plymouth Center for Human Development, Department of Mental Health, State of Michigan, Mr. Frank Watassek has shown overt sensitivity to the needs of the residents of living area, K-4. Because of this overt sensitivity, his performance has been unsatisfactory. This overt sensitivity has both affected his program priorities, work judgment, and too has created frequent instances of confusion with attending nurse 03 staff. It is the opinion of this Administrator that this overt sensitivity to the needs and wants of the residents could bring dissension to the program and therefore, it is recommended that appropriate steps be taken to terminate said persons [sic ] employment immediately."

On June 2, 1976, plaintiff filed a grievance on "Grievance Procedure Form CSG-1" with the Michigan State Civil Service Commission. On the grievance form, plaintiff stated:

"I may have been dismissed as a reprisal for bringing charges of resident abuse against SME attendants at Plymouth Center for Human Development and in the process [of] questioning an incident I was involved in as well as the possible unwillingness of the administration to have dealt with the problem earlier my interim review of only one month stated I should be terminated but I was given a S2 status without any comment [or] explanation. It was claimed I was overt[ly] sensitive. This seems a cop-out."

At that time, plaintiff felt that a just and fair solution of his grievance would be to return him to his work so that he could gain the experience necessary for a masters' degree in clinical psychology.

On June 18, 1976, the director of the department,[143 MICHAPP 560] Donald C. Smith, M.D., without a hearing, but after reviewing plaintiff's grievance, the "Employee Departure Report", and the "Service Rating Report", made the following determination:

"Agency records disclose that Mr. Watassek, Attendant Nurse 03, was hired by the agency on April 18, 1976. Thereafter he was given an interim unsatisfactory service rating on May 20, 1976. It is reported that Mr. Watassek read the evaluation and stated that he could not work at the agency any longer; therefore, [he] signed an Employee Departure Report on the same day. The document indicates that he resigned.

"I have examined the presented facts and fail to find that the resignation was not voluntary. Therefore, it shall stand."

Plaintiff did not appeal that decision further. Today, however, he claims that he did seek administrative review of his termination but was notified that he could not do so because he was on probationary employee status. That notification came in the form of a letter from Ivan E. Estes, Personnel Director for the Department of Mental Health. In the letter, Estes informed plaintiff that the grievance review which was scheduled for Tuesday, June 15, 1976, was cancelled for the reasons that (1) plaintiff resigned, (2) plaintiff was a probationary employee, and (3) there were no provisions in the Grievance and Appeals Procedure for Employees in the State Civil Service for a review of a resignation of a probationary employee. Furthermore, Estes stated that "there is no supporting evidence that this was other than a voluntary resignation".

On May 18, 1978, plaintiff commenced this action in the Court of Claims alleging that he was terminated "without cause and out of retaliation" and "[a]t no time did the Plaintiff intend to, nor [143 MICHAPP 561] attempt to, voluntarily resign his position as Attendant Nurse 03; rather at all times, Plaintiff believed he had been fired". He prayed for money damages to compensate him for wrongful discharge. Plaintiff also brought a libel action against the department but later dismissed that claim voluntarily.

On June 13, 1978, defendant filed a motion for accelerated judgment on the ground that the Court of Claims lacked subject-matter jurisdiction over plaintiff's action, GCR 1963, 116.1(2). On April 30, 1979, the trial court denied defendant's motion. A motion for reconsideration based on Bays v. Dep't. of State Police, 89 Mich.App. 356, 280 N.W.2d 526 (1979), was denied on July 24, 1980.

On October 25, 1982, defendant brought a motion for summary judgment pursuant to GCR 1963, 117.2(1) (failure to state a claim upon which relief can be granted). At the hearing on December 8, 1982, the defendant argued that the Civil Service Commission is vested with exclusive jurisdiction over the instant matter and that the circuit court is the proper court to review that agency's final decisions. After hearing oral argument, the Court of Claims judge stated:

"THE COURT: I guess I disagree with the notion that he is somehow compelled to--unless you can present a case that indicates that to me--that he is compelled to exhaust administrative remedies to the final degree before he can assert a Claim for money damages to a wrongful discharge

* * * "I am not aware of any authority that somehow [sic ] has to exhaust administrative remedies before they assert money damages for a wrongful discharge. None of the cases you cite here--although some present points that have bearing on the issue--none of them suggest there is such a requirement.

[143 MICHAPP 562] "All cases talk about reinstatement. Presumably, the person coming to the forum in each of the cases wants to be reinstated or wants to get back some of the employment rights.

"This man does not ask for reinstatement of seniority or anything like that. He just says I was wrongfully discharged. I have been damaged and I am entitled to be reimbursed for the damages I have suffered.

"So I don't see any basis upon which I will grant the Motion and I will deny Motion for Summary Judgment."

We granted leave to consider whether the complaint filed in this case states a claim upon which relief can be granted. The specific question before the Court is whether a civil service employee has an original cause of action against the Michigan Department of Mental Health for retaliatory discharge.

Defendant makes two arguments in support of its position. First of all, defendant argues that the Court of Claims cannot exercise subject-matter jurisdiction over plaintiff's retaliatory discharge claim because the Civil Service Commission has exclusive authority to regulate all conditions of employment for classified employees, with appellate jurisdiction vested in the circuit courts. Const. 1963, art. 11, Sec. 5; M.C.L. Sec. 600.631; M.S.A. Sec. 27A.631. To support its position, defendant cites the case of Bays v. Dep't of State Police, supra.

Second, defendant argues that in any event the plaintiff is precluded from bringing suit in the Court of Claims because he failed to exhaust his administrative remedies under the Civil Service Act. See Judges of the 74th Judicial Dist. v. Bay County, 385 Mich. 710, 728, 190 N.W.2d 219 (1971).

In response, plaintiff points out first that his action is one for money damages, not for job reinstatement. Thus he argues that the remedy he [143 MICHAPP 563] seeks is not one that is available through the civil service grievance and appeals procedure and that therefore only the Court of Claims can entertain this action.

Second, plaintiff characterizes the exhaustion of administrative remedies requirement in the present context as a futile expenditure of effort, citing the case of Trojan v. Taylor Twp., 352 Mich. 636, 638-639, 91 N.W.2d 9 (1958).

It will not be necessary for this Court to reach the exhaustion of remedies issue because we agree that in any case it may have been futile for plaintiff to do so for the following...