WENDY WOMACK SCOTT V DEPT OF CORRECTIONS
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STATE OF MICHIGAN
COURT OF APPEALS
WENDY WOMACK-SCOTT,
FOR PUBLICATION
May 15, 2001
9:25 a.m.
Plaintiff-Appellant,
v
No. 217734
Ingham Circuit Court
LC No. 98-088232-NZ
DEPARTMENT OF CORRECTIONS,
Defendant-Appellee.
Updated Copy
July 20, 2001
Before: Doctoroff, P.J., and Hoekstra and Markey, JJ.
PER CURIAM.
In this action stemming from plaintiff Wendy Womack-Scott's discharge from
employment, plaintiff alleges that defendant Department of Corrections (DOC) violated the Civil
Rights Act (CRA), MCL 37.2101 et seq., by discriminating against her on the basis of race and
marital status and that defendant wrongfully discharged her for a multitude of reasons.
Defendant moved for summary disposition or dismissal of both counts, and the trial court granted
defendant's motion. Plaintiff appeals as of right. We affirm.
Plaintiff began her employment with defendant in 1984 as a corrections officer and later
held the supervisory position of resident unit manager. In May 1994, defendant terminated
plaintiff 's employment because she violated Work Rule 12, Section C, of the MDOC Employee
Handbook governing "conduct unbecoming a department employee." That rule prohibits
cohabitation with a probationer or parolee except in certain circumstances involving marital
relationships. At the time plaintiff accepted employment with defendant in 1984, she was living
with her boyfriend and the couple had a child in 1988. Since 1989, plaintiff 's boyfriend has
spent time in jail, in prison, or on parole. Although released on parole in June 1990, plaintiff 's
boyfriend returned to prison in August 1990 because of a parole violation. In September of 1990,
in an apparent attempt to comply with civil service work rules, plaintiff reported to defendant
that "a close and personal friend" with whom she has a two-year-old daughter was a prisoner.
Plaintiff 's boyfriend again was released on parole in 1991. Years later, in February 1994, police
raided plaintiff 's home and discovered that she was living with her boyfriend, who was still on
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parole.1 On May 26, 1994, defendant terminated plaintiff 's employment for violating Work Rule
12.
After her termination, plaintiff filed a grievance with the Department of Civil Service,
claiming that her discharge under Work Rule 12 was without just cause, that Work Rule 12 was
illegal, and that other similarly situated employees who had violated Work Rule 12 were not
discharged. Following a grievance hearing, the hearing officer concluded that just cause for
discipline existed, but that discharge was too severe a penalty. The hearing officer awarded
plaintiff reinstatement to her former position or an equivalent position, but without back pay.
Plaintiff was reinstated on February 26, 1995, and remained employed with defendant until
March 22, 1996. During that time, defendant's appeal of the grievance hearing officer's decision
was first affirmed by the Employment Relations Board, but later the Michigan Civil Service
Commission (CSC) reversed the hearing officer's reduction of penalty and reinstated termination,
effective March 22, 1996.
Approximately two years after her latter discharge from employment with defendant and
after the CSC's decision became final, plaintiff filed in the circuit court a two-count complaint
alleging violations of the CRA and wrongful discharge. Defendant moved for summary
disposition or dismissal for multiple reasons. The trial court granted defendant's motion,
concluding that the statute of limitations barred plaintiff 's CRA claim and that it lacked subjectmatter jurisdiction to consider the wrongful discharge claims.2
Plaintiff first argues that the trial court erred in dismissing her CRA claim on the basis
that the three-year period of limitation under MCL 600.5805(8)3 barred her race and marital
status discrimination claims under the CRA. Plaintiff claims that the trial court utilized the
wrong date when calculating the limitation period. According to plaintiff, the three-year period
of limitation did not bar these claims because they accrued on March 22, 1996, which was the
last day that she was employed by defendant, and she filed her complaint approximately two
years later, on April 30, 1998. However, defendant argues that the date that defendant initially
terminated plaintiff 's employment, May 26, 1994, is the date that plaintiff 's claims accrued, and
therefore the statute of limitations bars her claims. The trial court agreed with defendant.
A plaintiff who alleges employment discrimination under the CRA must file her claim
within three years of the time that it accrued. Meek v Michigan Bell Telephone Co, 193 Mich
App 340, 343; 483 NW2d 407 (1991); MCL 600.5805(9). When a plaintiff asserts a claim for
discriminatory discharge, which plaintiff did in this case, the time of accrual commences on the
1
Although not relevant to this appeal, we note that the couple had another child in 1992 and,
according to plaintiff, married in 1997.
2
We review a trial court's grant of summary disposition de novo. Maiden v Rozwood, 461 Mich
109, 118; 597 NW2d 817 (1999). Similarly, we review jurisdiction, which is a question of law,
de novo. Bass v Combs, 238 Mich App 16, 23; 604 NW2d 727 (1999).
3
Since plaintiff filed this claim, MCL 600.5805 has been amended, and the current subsection
applicable to employment discrimination claims is subsection 9.
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date that the employer discharged her from the job. Parker v Cadillac Gage Textron, Inc, 214
Mich App 288, 290; 542 NW2d 365 (1995). In Parker, where the employment records contained
a mistaken notation of the correct date of discharge, this Court explained that "[t]he last day
worked is the date of discharge." Id. at 290.
In the present case, although plaintiff was technically reinstated for a period as a result of
administrative decisions and again discharged, we disagree that the second and final discharge
should apply for purposes of calculating the limitation period. Contrary to plaintiff 's argument,
it makes no sense to say that plaintiff was discharged for discriminatory reasons, but that the
discharge was effective only at a later date. As the trial court explains, "a claim for
discriminatory discharge accrues on the date that the party was discharged and not the date that
an administrative agency reinstates a prior termination which was itself set aside at a prior
administrative level of the appeals process." Accordingly, plaintiff 's race and marital status
discrimination claims accrued on May 26, 1994, the date of her initial discharge that was
allegedly for discriminatory reasons, and thus the trial court properly concluded that the threeyear period of limitation barred plaintiff 's discrimination claims. MCR 2.116(C)(7); Parker,
supra. To rule otherwise would be contrary to the principle that the CSC and the circuit court
have concurrent jurisdiction over discrimination claims. Nummer v Dep't of Treasury, 448 Mich
534, 550; 533 NW2d 250 (1995); Walters v Dep't of Treasury, 148 Mich App 809, 814-815, 819;
385 NW2d 695 (1986); Marsh v Dep't of Civil Service, 142 Mich App 557, 562-569; 370 NW2d
613 (1985). Where concurrent jurisdiction exists, it defies reason to hold that jurisdiction is in
any way dependent on the outcome from a tribunal of concurrent jurisdiction.4
Plaintiff also argues that the trial court erred in concluding that it lacked subject-matter
jurisdiction over her wrongful discharge claims. Plaintiff asserted in the second count of her
complaint that defendant wrongfully discharged her because of (1) the lack of just cause to
discipline her under Work Rule 12, Section C, and violation of (2) the civil service rules, (3) the
CRA, (4) the merit principles, and (5) public policy. Plaintiff argues on appeal that jurisdiction
lies in the circuit court because the administrative hearing officer stated that he "lack[ed]
jurisdiction to challenge the legal basis of those rules." In a brief and conclusory manner,
plaintiff appears to be suggesting that she was denied "her day in court" on her wrongful
discharge claims other than the ruling that she violated Work Rule 12.5 Plaintiff further asserts
4
Plaintiff did not argue that her administrative action tolled the statute of limitations. See
Rodgers v Washtenaw Co, 209 Mich App 73, 75; 530 NW2d 118 (1995) ("The statute of
limitations for a civil action brought in the circuit court is not tolled by a prior action seeking
administrative relief for the same alleged harm.").
5
We assume on the basis of the hearing officer's ruling that plaintiff 's grievance included a claim
that Work Rule 12 is unconstitutional. Because plaintiff filed the instant case as an original
action, we lack the record of the administrative agency proceedings. However, the record does
contain a copy of the hearing officer's grievance decision and the language from which we
assume plaintiff bases her constitutional challenge:
Grievant's argument that in the [sic] light of case law Rule 12 is
unconstitutional is not a factor in resolving this grievance. The authority of this
(continued…)
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that "[w]rongful discharge based upon the Elliott Larsen Civil Rights Act, Merit Principles or
Civil Service Rules that require equality and proscribe marital status discrimination are not time
barred." According to plaintiff, a six-year statute of limitations applies to these claims because
they are based on contract, not on discriminatory employment practices. Finally, although
difficult to ascertain, it appears that plaintiff contends that her pleadings do state an actionable
claim for discharge in violation of public policy.
In response to plaintiff 's arguments, defendant asserts, as it did in the circuit court, that
plaintiff 's CRA claim is time-barred by the applicable three-year statute of limitations for CRA
claims. Further, defendant maintains, among other things,6 that plaintiff failed to exhaust her
administrative remedies because she did not pursue an appeal of the final CSC decision to the
circuit court, thus making dismissal appropriate.
With regard to the CRA aspect of plaintiff 's wrongful discharge claim, we note that a
plaintiff is not required to exhaust administrative remedies before proceeding to the circuit court
on a CRA claim. Walters, supra at 815; Marsh, supra. However, to the extent that her wrongful
discharge claim was based on the CRA, we agree with the trial court that the statute of
limitations barred that claim, for the reasons explained above.
With regard to the other claims asserted in plaintiff 's wrongful discharge count, because
plaintiff is an employee of the DOC and is therefore a member of the state classified civil service,
any claim for wrongful discharge is subject to the grievance procedure for the classified service.
Const 1963, art 11, § 5; Viculin v Dep't of Civil Service, 386 Mich 375, 393; 192 NW2d 449
(1971); Michigan Supervisors Union OPEIU Local 512 v Dep't of Civil Service, 209 Mich App
573, 576; 531 NW2d 790 (1995); Bonneville v Michigan Corrections Organization, Service
Employees Int'l Union, Local 526M, AFL-CIO, 190 Mich App 473, 475; 476 NW2d 411 (1991).
In this case, the parties availed themselves of the CSC grievance procedures. Plaintiff properly
filed a grievance and after a hearing and the receipt of posthearing briefs, the hearing officer
issued a grievance decision acknowledging the violation of Work Rule 12, but finding the
penalty of discharge too severe. The hearing officer reinstated plaintiff to her former or an
equivalent position, but without back pay. From the limited record, it appears that defendant
pursued the proper avenue to seek review of the hearing officer's grievance decision by applying
for leave to appeal to the Employment Relations Board (ERB). After the ERB affirmed the
hearing officer's decision, defendant sought review by the CSC. In its decision, the CSC
(…continued)
Hearing Officer is limited to the interpretation and application of the Civil Service
rules and regulations, and he lacks jurisdiction to challenge the legal basis of those
rules.
Plaintiff fails to articulate the basis of her "constitutional" claim in her appellate brief. We
assume on the basis of the quoted language that plaintiff was seeking relief in the circuit court
through an original cause of action on the theory that there was no just cause for termination
because the work rule under which just cause for termination was found was unconstitutional.
6
Although defendant provided additional reasons why summary disposition and dismissal were
appropriate, we do not discuss those reasons because they do not affect our analysis.
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affirmed the ERB's decision to the extent that the ERB determined that plaintiff had committed a
Class II Offense that subjected her to appropriate disciplinary penalties. However, the CSC
determined that the hearing officer abused his discretion and exceeded his authority when he
reduced the penalty of dismissal to a disciplinary suspension and, likewise, the CSC determined
that the ERB abused its discretion in affirming the reduction of the penalty. The CSC reinstated
plaintiff 's termination, effective March 22, 1996. On this record, it appears that the internal
administrative procedures were exhausted by the parties and defendant prevailed.
Defendant having ultimately prevailed in the administrative review process, the question
becomes what recourse was available to plaintiff to continue to pursue her claims against
defendant. Plaintiff answered that question by filing an independent action for wrongful
discharge within the applicable six-year period for such actions generally, but approximately two
years after the final administrative ruling of the CSC. Defendant maintains that plaintiff 's suit is
improper and that her only avenue to continue her claim was a direct appeal from the CSC ruling
within sixty days as provided by the Administrative Procedures Act (APA), MCL 24.201 et seq.
We agree with defendant.
The CSC is an administrative agency that exists pursuant to the constitution. Const 1963,
art 11, § 5. The CSC regulates the terms and conditions of employment in the classified service
and has plenary and absolute authority in that respect. Id.; Michigan Supervisors Union OPEIU
Local 512, supra; Bonneville, supra. The APA provides the means to seek review of a CSC
decision. MCR 7.104(C). If a party desires to challenge an adverse CSC decision or ruling, the
review process involves a direct appeal to the circuit court. Const 1963, art 6, § 28; MCL 24.301
et seq.; MCR 7.104(C). In Nummer, supra, at 551, our Supreme Court explained:
[I]t is clear that the Legislature intended to make the Civil Rights
Commission findings final in the absence of an appeal and, accordingly, also must
have intended to make Civil Service Commission determinations final in the
absence of an appeal. Regardless of whether an appeal is taken, the Legislature
has provided only one remedy from an adverse determination, i.e., direct appeal in
the circuit court. An appeal by its very nature contemplates the possibility of
reversal, but it certainly does not contemplate a new, original action. If the
Legislature intended anything else, it would have said so more directly.
Cf. Northwestern Nat'l Casualty Co v Comm'r of Ins, 231 Mich App 483, 495-496; 586 NW2d
563 (1998) (an independent action attacking the decisions of the Commissioner of Insurance is
not contemplated in the Insurance Code).
Considering the function that the CSC serves to resolve employment disputes of state
employees and the availability of a direct appeal to the circuit court from a CSC decision, we
hold that a party aggrieved by a ruling of the CSC cannot file an independent action to seek
redress of the claims made during the administrative process, but rather must pursue those claims
through a direct appeal to the circuit court pursuant to the APA. See MCR 7.104(C). Here,
plaintiff did not appeal the CSC decision to the circuit court within the sixty-day period
mandated by the APA, see MCL 24.304(1), but instead she filed a separate action in the circuit
court. Plaintiff 's failure to initiate a timely appeal is fatal.
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To the extent that plaintiff suggests that she is entitled to file a separate cause of action in
the circuit court to address the constitutional issue over which the administrative agency had no
jurisdiction, we find her claim without merit. This Court has explained that when a
constitutional issue is intermingled with issues properly before an administrative agency,
exhaustion of administrative remedies is not excused:
[T]he exhaustion requirement is displaced only when there are no issues in
controversy other than the constitutional challenge. The mere presence of a
constitutional issue is not the decisive factor in avoiding the exhaustion
requirement. If there are factual issues for the agency to resolve, the presence of a
constitutional issue, or the presence of an argument couched in constitutional
terms, does not excuse the exhaustion requirement even if the administrative
agency would not be able to provide all the relief requested. [Michigan
Supervisors Union OPEIU Local 512, supra at 578 (citations omitted).]
Constitutional issues not within the administrative agency's jurisdiction can be raised in
the circuit court through the review procedure in the APA; no separate action is contemplated or
allowed. Indeed, MCR 24.304(3) provides that "[t]he court, on request, shall hear oral arguments
and receive written briefs." Moreover, the APA and the applicable court rule provide a method
for taking additional evidence if necessary. MCL 24.305; MCR 7.105(I); cf. In re Nichols, 150
Mich App 1, 9; 388 NW2d 682 (1986) ("While the APA limits review to the record, it also
provides [a party] a remedy rendering a de novo court hearing unnecessary."). Further, when
there is an appeal from an administrative agency, the circuit court "may affirm, reverse, remand,
or modify the decision of the agency and may grant the petitioner or the respondent further relief
as appropriate based on the record, findings, and conclusions." MCR 7.105(M). This procedure
is sufficient to provide plaintiff relief from an administrative agency decision and for claims not
decided by the administrative agency. Plaintiff failed to utilize this procedure and is therefore
not entitled to relief on her alleged constitutional issue. See MCR 7.105(J)(2).
Affirmed.
/s/ Martin M. Doctoroff
/s/ Joel P. Hoekstra
/s/ Jane E. Markey
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