CHARLES J KISH V COUNTY OF WAYNE
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STATE OF MICHIGAN
COURT OF APPEALS
CHARLES J. KISH
UNPUBLISHED
February 21, 1997
Plaintiff-Appellant,
v
No. 187790
LC No. 94-414477 CZ
COUNTY OF WAYNE and ROBERT L. ALLEN,
Defendants-Appellees.
Before: Cavanagh, P.J., and Gage and D.A. Burress,* JJ.
PER CURIAM.
Plaintiff appeals as of right trial court order granting defendants' motion for summary disposition
pursuant to MCR 2.116(C)(10). Plaintiff brought this action against his employer claiming breach of
contract, violation of his constitutional rights pursuant to 42 USC 1983, violation of the Civil Rights Act,
MCL 37.2101 et seq.; MSA 3.548(101) et seq., constructive discharge, and violation of the Employee
Right To Know Act, MCL 423.501 et seq.; MSA 17,62(1) et seq. On appeal, plaintiff claims that the
trial court erroneously dismissed his breach of contract claim for failure to include his union as a
defendant and erroneously determined that plaintiff failed to submit factual support for his remaining
claims. We affirm.
On appeal, an order granting or denying summary disposition is reviewed de novo. A motion
for summary disposition may be granted pursuant to MCR 2.116(C)(10) when, except as to the amount
of damages, there is no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law. Giving the benefit of reasonable doubt to the nonmovant, the trial court must determine
whether a record might be developed that would leave open an issue upon which reasonable minds
might differ. Plieth v St Raymond Church, 210 Mich App 568, 571; 534 NW2d 164 (1995).
I
In his first issue, plaintiff argues that the trial court erroneously dismissed his breach of contract
suit against defendant Wayne County because plaintiff did not also bring an action against the union for
* Circuit judge, sitting on the Court of Appeals by assignment.
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breach of the duty of fair representation. Under Michigan labor law, a plaintiff who is represented by a
collective bargaining unit cannot pursue his breach of contract claim against the employer unless he is
successful in his claim of breach of the duty of fair representation against the union. Knoke v East
Jackson Public School Dist, 201 Mich App 480, 485; 506 NW2d 878 (1993). This rule is consistent
with cases brought under the federal law, where the “plaintiff-employee must demonstrate that his union
breached its duty of fair representation in pursuing his claim.” Romero v Paragon Steel Division,
Portec, Inc, 116 Mich App 261, 263; 323 NW2d 363 (1982) (citing Vaca v Sipes, 386 US 171,
179-180; 87 S Ct 903; 17 L Ed 2d 842 (1967)). Under federal labor law, although the union’s
wrongdoing must be proven to permit judicial resolution of the plaintiff’s breach of contract claim against
the employer, the union is not an indispensable party and an employee may sue the employer without
also suing the union. DelCostello v Teamsters, 462 US 151, 165; 103 S Ct 2281; 76 L Ed 2d 476
(1983).
We conclude that the trial court erred in determining that plaintiff could not maintain a breach of
contract action against defendants without also maintaining a breach of duty of fair representation claim
against the union. However, because plaintiff failed to establish a question of fact regarding whether the
union breached its duty of fair representation, the trial court did not err in granting defendants’ motion
for summary disposition.
To prevail on a claim of unfair representation, a party must establish both a breach of the
union’s duty of fair representation and a breach of the collective bargaining agreement. Goolsby v
Detroit, 211 Mich App 214, 223; 535 NW2d 568 (1995). When a plaintiff’s claim is predicated on
allegations that the union failed to pursue a meritorious grievance, this Court recognizes that a union has
considerable discretion to decide which grievances shall be pressed to arbitration and which shall be
settled, and must be permitted to assess each grievance with a view to individual merit. Knoke, supra
at 486.
In the instant case, plaintiff has failed to demonstrate that the union abused its discretion in failing
to pursue a grievance. Plaintiff testified in his deposition that he opted for early retirement after
discussing his options with the union. This evidence establishes that both plaintiff and his union
representatives had cause to believe that a satisfactory solution could be had by plaintiff’s early
retirement. The fact that the settlement agreement subsequently proved to be unsatisfactory does not
indicate that the union acted in bad faith. Because plaintiff chose to take an early retirement in order to
avoid disciplinary termination, the union’s failure to file a grievance cannot be considered an abuse of
discretion. Although there is no evidence that plaintiff explicitly stated that he would waive his right to
file a grievance, his decision to pursue early retirement must be considered an implicit rejection of the
grievance option. Under these circumstances, there is no question of fact regarding plaintiff’s claim that
the union breached its duty of fair representation.
In sum, the trial court improperly granted defendants’ motion for summary disposition on the
ground that plaintiff did not also sue the union. However, plaintiff failed to establish factual support for
his breach of duty of fair representation allegations. This Court will not reverse where the right result is
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reached for the wrong reason. Welch v District Court, 215 Mich App 253, 256; 545 NW2d 15
(1996). Accordingly, we affirm the trial court’s grant of defendant’s motion for summary disposition.
II
Plaintiff next claims that the trial court erred in granting defendants' motion for summary
disposition with regard to plaintiff's racial discrimination claim. Plaintiff’s claim of disparate treatment
requires a showing that the plaintiff was a member of the class entitled to protection under the act and
that he was treated differently than persons of a different class for the same or similar conduct. Betty v
Brooks & Perkins, 446 Mich 270, 281; 521 NW2d 518 (1994).
Plaintiff has alleged that he was treated differently than Keith Hunter, an employee of a different
race. Plaintiff has established, through deposition testimony, that Hunter escaped disciplinary action
despite his frequent unexplained absences. However, while absenteeism is misconduct, it is of a
different character than plaintiff’s abusive conduct toward subordinates and members of the public.
Hunter was therefore not similarly situated to plaintiff, and plaintiff has consequently failed to offer
evidence in support of a prima facie case of race discrimination.
On appeal, plaintiff argues that there was evidence that Hunter “orally chastised” three persons,
yet escaped disciplinary action. Specifically, plaintiff points to his own deposition testimony, in which he
stated that three people told him that Hunter had verbally abused them. However, this testimony is
hearsay and as such does not constitute admissible evidence. The existence of a disputed fact must be
established by admissible evidence. Cox v Dearborn Heights, 210 Mich App 389, 398; 534 NW2d
135 (1995). Because plaintiff offered no admissible evidence that Hunter had verbally abused others,
the trial court did not err in granting defendants’ motion for summary disposition on this issue.
III
In his third issue, plaintiff claims that the trial court erroneously determined that plaintiff failed to
produce factual support for his constructive discharge claim. However, constructive discharge is not
actionable in itself. Instead, constructive discharge is actionable only when it occurs in the context of
otherwise wrongful discharge. See, e.g., Champion v Nation Wide Security, Inc, 450 Mich 702,
711; 545 NW2d 596 (1996) (sexual harassment claim); Radtke v Everett, 442 Mich 368, 377; 501
NW2d 155 (1993) (sex discrimination claim); Manning v Hazel Park, 202 Mich App 685, 696-697;
509 NW2d 874 (1993) (sex and age discrimination claims); Hammond v United of Oakland, Inc,
193 Mich App 146, 152-153; 483 NW2d 652 (1992) (breach of employment contract claim).
Because plaintiff’s allegations of constructive discharge have not been made in the context of any viable
wrongful discharge or discrimination claim, plaintiff is not entitled to relief.
IV
Plaintiff also seeks relief under 42 USC 1983. This statute provides that any person, acting
under color of state law, who deprives a citizen of his or her constitutional rights or privileges, is liable to
that person. In establishing a cause of action against state officials under § 1983, the plaintiff must plead
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and prove that he has been deprived of a federal right and that the defendant deprived him of that right
while acting under color of state law. Mollett v City of Taylor, 197 Mich App 328, 344; 494 NW2d
832 (1992).
We assume that because plaintiff's collective bargaining agreement prohibited his discharge
except for just cause, he held a protected property interest in his employment, and that defendants could
not deny him that right without due process. See Garner v Michigan State University, 185 Mich
App 750, 759; 462 NW2d 832 (1990). However, this Court has held than when administrative
remedies which afford due process are available to the employee, the employee must exhaust these
remedies before establishing a § 1983 action against the employer. Mollett, supra at 344-345. In the
instant case, plaintiff failed to exhaust his administrative remedies because he opted for early retirement
in lieu of pursuing the posttermination grievance procedure under the collective bargaining agreement.
The trial court therefore did not err in dismissing plaintiff's § 1983 claim.
V
In his last issue, plaintiff claims that the trial court erred in determining that he failed to prove that
defendants violated the Employee Right To Know Act. The statute, provides, in pertinent part:
An employer, upon written request which describes the personnel record, shall
provide the employee with an opportunity to periodically review at reasonable intervals,
generally not more than 2 times in a calendar year or as otherwise provided by law or a
collective bargaining agreement, the employee’s personnel record if the employer has a
personnel record for that employee. [MCL 423.503; MSA 17.62(3).]
Plaintiff claims that the absence of the December 7, 1993, disciplinary records from his file
constitutes a violation of this act. However, as the trial court noted, no disciplinary action was taken in
the instant case because plaintiff accepted early retirement in lieu of termination. Because no disciplinary
action was actually taken, records of the unconsummated termination decision should not have been
placed in the record. In fact, noting disciplinary action in an employee’s personnel file when none was
taken would constitute placement of false information in the file, in itself a violation of the act. See MCL
423.505; MSA 17.62(5). Accordingly, the trial court property granted defendants’ motion for
summary disposition with regard to this claim.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Hilda R. Gage
/s/ Daniel A. Burress
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