WILLIAM M SHIREMAN V CITY OF KALAMAZOO
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STATE OF MICHIGAN
COURT OF APPEALS
WILLIAM M. SHIREMAN,
UNPUBLISHED
August 5, 1997
Plaintiff-Appellant,
v
No. 189872
Kalamazoo Circuit Court
LC No. 91-002580-NZ
CITY OF KALAMAZOO,
Defendant-Appellee.
Before: Neff, P.J., and Smolenski and D. A. Roberson*, JJ.
PER CURIAM.
Plaintiff appeals as of right from the trial court’s grant of summary disposition in favor of
defendant. We affirm.
Plaintiff was employed by defendant for more than thirty years, first as a fireman and then, after
defendant merged its police and fire departments into a unified Department of Public Safety (DPS), as a
public safety officer. During his years of employment, defendant had several surgeries for work-related
hernias. In 1985, defendant applied to the defendant’s pension board for a duty disability retirement
apparently because he had sustained yet another work-related hernia. In 1986, the pension board
approved plaintiff’s application. However, plaintiff did not begin receiving his pension at this time
because defendant apparently had a custom of allowing employees to exhaust other benefits before
actually retiring. In early 1988, plaintiff, believing that he had fully recovered from his hernia problems,
sought to be returned to active duty. However, pursuant to one of defendant’s applicable pension
ordinances,1 defendant’s DPS chief requested the board retire plaintiff based on the board’s previous
finding that plaintiff was “Medically Disabled.” In September, 1988, the board voted that plaintiff be
retired and not returned to work. Plaintiff did not appeal this decision.
In August, 1991, plaintiff filed this case against defendant, asserting in count one a violation of
defendant’s pension ordinance, in count two a claim for handicap discrimination and, eventually, in count
three a claim for age discrimination. All three claims were based on defendant’s failure to return plaintiff
* Recorder's Court judge, sitting on the Court of Appeals by assignment.
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to duty in September, 1988. In January, 1994, the trial court denied defendant’s motion for summary
disposition. Defendant appealed and this Court issued the following order:
Pursuant to MCR 7.205(D)(2) and 7.211(C)(4), the motion for peremptory
reversal is GRANTED in part. The Kalamazoo Circuit Court’s January 19, 1994
order, denying defendant’s motion for summary disposition is, as to count one only of
the complaint, REVERSED, and on remand the circuit court shall enter an order
granting summary disposition as to count one of plaintiff’s complaint. By statute, the
actions of defendant City’s pension board were quasi-judicial in nature, reviewable by
certiorari only, MCL 38.555 [MSA 5.3375(5)]. Plaintiff has never instituted such
review proceedings, MCR 3.302(C), and may not collaterally attack the pension
board’s decision. Theisen v City of Dearborn, 5 Mich App 607 [147 NW2d 720]
(1967) [remanded on another ground 380 Mich 621 (1968)]. The circuit court’s
finding that, as to count one, an issue of fact is presented is clearly erroneous, since, on
an appeal in the nature of certiorari, the court may not inquire into the sufficiency of the
evidence, but may review only questions of law. Imlay Twp Primary School Dist #5
v State Bd of Ed, 359 Mich 478 [102 NW2d 720] (1960); McComb v City Council
of Lansing, 264 Mich 609 [250 NW 326] (1933); see also In re Payne, [444 Mich
679; 514 NW2d 121 (1994)].
In all other respects the application for leave to appeal is DENIED for failure to
persuade the Court of the need for immediate appellate review. That plaintiff might
have raised issues of discrimination in a direct review proceeding, Shelby Fire Dep’t v
Shields, 115 Mich App 98 [320 NW2d 306] (1982), does not mean that plaintiff had
to proceed in that manner. Pompey v General Motors Corp, 385 Mich 537 [189
NW2d 243] (1971); Boscaglia v Michigan Bell Telephone Co, 420 Mich 308 [362
NW2d 642] (1984); Holmes v Haughton Elevator Co, 404 Mich 36 [272 NW2d
550] (1978). [Shireman v City of Kalamazoo, unpublished order of the Court of
Appeals, entered April 7, 1994 (Docket No. 172012).]
In July, 1995, defendant again moved for summary disposition of plaintiff’s age and handicap
discrimination claims pursuant to MCR 2.116(C)(7), (8) and (10). Following oral argument, the trial
court issued a bench opinion, stating, in relevant part, as follows:
This Court determines, in looking at the pleadings, that the Plaintiff’s complaint
centers around the actions and findings of the Pension Board, which resulted in the
termination of his employment. He has not alleged an act other than that by the Pension
Board – excuse me – as a basis for his complaint. He does allege, however, that the
action taken by the Pension Board was simply a rubber stamp approval of what the
chief of the Public Safety Department wanted, and that the resulting forced retirement
was part of a general plot to weed out older, so-called fireside command officers from
the Public Safety Department and to elevate younger officers into those positions.
However, the essence of the complaint continues to be a decision made by the Pension
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Board and does not change the fact that his complaint is with the decision of the Pension
Board and not the City of Kalamazoo.
This Court finds it significant that the Pension Board is a quasi judicial body,
per MCL 38.555 [MSA 5.3375(5)]. The Kalamazoo City Code provides that an
employee has the right to appeal the decision of a pension board. And, that right is also
affirmed in the above-quoted statute.
In the instant action the Plaintiff did not appeal the decision of the Pension
Board by writ of certiorari, or otherwise. It has been decided that a plaintiff may not
collaterally attack the quasi judicial decision. I would . . . cite Theisen, [supra], a
1967 decision.
This Court finds that the . . . instant action amounts to a collateral attack on the
decision of the Pension Board.
Since Plaintiff’s complaint lies with the action taken by the Pension Board and
does not delineate any acts by the City of Kalamazoo, which are independent of the
action taken by the Pension Board, this Court believes that the Plaintiff’s claim is barred
by prior judgment and fails to state a claim upon which relief can be granted.
Accordingly, the Court will grant summary disposition to the City of
Kalamazoo, pursuant to Subsection (7) and (8) of MCR 2.116(C).
I would indicate to Counsel that I believe every opportunity has been given to
the Plaintiff to develop a cause of action. There have been numerous amendments to
the complaint. This case has . . . wound its way through various courts, including this
Court, the Court of Appeals, the Federal District Court.
Bottom line, after considering the case law in this matter, and looking at the
decisions of the other courts who have had input in this matter, is that in the final analysis
the decision complained of was by the Pension Board. Whether there is an alter ego
theory that can be pled in matters of this type involving the quasi judicial body is one
which, I think, is best decided by the appellate level and not by this Court.
Accordingly, in light of everything which has occurred, the Court will grant
summary disposition as to the remaining allegations in the complaint.
The trial court subsequently entered a final order in conformity with its bench opinion.
On appeal, plaintiff argues that the court erred in granting summary disposition in favor of
defendant. Specifically, plaintiff contends that the pleadings do allege claims of handicap and age
discrimination upon which relief can granted. Plaintiff further alleges that the trial court erred in
concluding that his claims are barred by collateral estoppel.
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We agree with the trial court that the essence of plaintiff’s age and handicap discrimination
claims concern the pension board’s decision to retire plaintiff. Based on the ruling contained in the
previous order issued by this Court, the law of the case is that plaintiff may not now collaterally attack
the pension board’s quasi-judicial decision. MS Development, Inc v Auto Plaza of Woodhaven
(After Remand), 220 Mich App 540, 548; 560 NW2d 62 (1996).2 Accordingly, we cannot say that
the trial court’s grant of summary disposition in favor of defendant was error. Patterson v Kleiman,
447 Mich 429; 526 NW2d 879 (1994).
Affirmed.
/s/ Janet T. Neff
/s/ Michael R. Smolenski
/s/ Dalton A. Roberson
1
Kalamazoo Ordinance § 2-242(a).
2
In light of our conclusion in this regard, we need not consider plaintiff’s collateral estoppel argument.
4
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