ALAN MCKEE V DEPT OF CORRECTIONS
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STATE OF MICHIGAN
COURT OF APPEALS
ALAN McKEE,
UNPUBLISHED
November 26, 1996
Plaintiff-Appellant,
v
No. 181286
LC No. 94-69117-NZ
DEPARTMENT OF CORRECTIONS, JAMES
POGATS, and ALBERT BORTON,
Defendants-Appellees.
Before: Holbrook, Jr., P.J., and Saad and W.J. Giovan,* JJ.
PER CURIAM.
Plaintiff, a white male, was employed by defendant Michigan Department of Corrections as a
custodial officer at the State Prison of Southern Michigan. He filed a three-count complaint against
defendants, alleging retaliatory action against him in violation of the Elliott-Larsen Civil Rights Act, MCL
37.2701 et seq.; MSA 3.548(701) et seq., intentional infliction of emotional distress, and also seeking
a determination of his job status. The circuit court granted defendants’ motion for summary disposition
pursuant to MCR 2.116(C)(8) and (10). Plaintiff appeals as of right and we affirm in part, reverse in
part, and remand for further proceedings.
In Count II of his complaint, plaintiff alleged that defendants retaliated against him in violation of
the Civil Rights Act because he assisted with a departmental civil rights investigation and refused to
make a false statement against a black female employee. The trial court granted defendants’ summary
disposition motion pursuant to MCR 2.116(C)(8), finding that white males were not protected persons
under the statute, that it only applied in cases of conspiracy between two or more persons, and that it
only applied in cases where the employee was discharged from employment. On appeal, plaintiff
contends that these holdings run contrary to the plain language of the statute. We agree.
MCL 37.2701; MSA 3.548(701) provides, in pertinent part:
Two or more persons shall not conspire to, or a person shall not:
* Circuit judge, sitting on the Court of Appeals by assignment.
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(a) Retaliate or discriminate against a person because the person has opposed a
violation of this act, or because the person has made a charge, filed a complaint,
testified, assisted, or participated in an investigation, proceeding, or hearing under this
act.
***
(f) Coerce, intimidate, threaten, or interfere with a person in the exercise or
enjoyment of, or on account of his or her having aided or encouraged any other person
in the exercise or enjoyment of, any right granted or protected by this act.
The statutory language is clear and must be enforced as written. Viele v DCMA Int’l Inc, 211 Mich
App 458, 465; 536 NW2d 276 (1995). First, the statute does not exclude white males from its
protections. Second, the statute prohibits retaliation or discrimination by a conspiracy of two or more
persons or by “a person.” And, third, an employee who suffers an adverse employment action short of
discharge is not precluded from relief under the statute. Accordingly, we reverse and remand for further
proceedings on this claim because the trial court erred in finding that plaintiff had failed to state a claim
on which relief could be granted.
Furthermore, viewing the pleadings and other documentary evidence in a light most favorable to
plaintiff, we find that plaintiff provided sufficient factual support for his retaliation claim to withstand a
motion of summary disposition pursuant to MCR 2.116(C)(10). Accordingly, to the extent the trial
court’s grant of summary disposition was based on this subrule, we find that it erred and that this matter
must be remanded for further proceedings.
Next, plaintiff argues that the trial court erred in granting summary disposition to defendants of
his claim of intentional infliction of emotional distress. We disagree. Liability for intentional infliction of
emotional distress is warranted only where the conduct complained of “has been so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious and utterly intolerable in a civilized community.” Linebaugh v Sheraton
Michigan Corp, 198 Mich App 335, 342; 497 NW2d 585 (1993). Liability does not extend to mere
insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Id. Here, plaintiff alleged
that he was assigned to work other than his normally assigned position as a psychological testing officer
or told to report each day for reassignment contrary to his duties as a psychological testing officer. He
further alleged that defendants Pogats and Borton attempted to deny him administrative leave to which
he was entitled, and that he was subjected to minor incidents of harassment including the suspicious
removal of his coffee cup from his desk while he was away on vacation. Such claims were insufficient
as a matter of law to withstand a motion of summary disposition. Stopczynski v Ford Motor Co, 200
Mich App 190, 196-197; 503 NW2d 912 (1993). Cf. Meek v Michigan Bell Telephone Co, 193
Mich App 340, 346; 483 NW2d 407 (1991). Consequently, we need not reach the issue of
governmental immunity.
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Next, plaintiff argues that the trial court did not exercise its discretion appropriately when it
effectively denied plaintiff’s request for leave to amend his complaint to clarify that defendants Pogats
and Borton were being sued in their individual, as well as representative, capacities. After reviewing
the record, including the trial court’s opinion, we are unable to say that the trial court abused its
discretion.
Finally, plaintiff argues that he is entitled to a declaratory judgment regarding his job status and
that the trial court erred in granting summary disposition in favor of defendants on this claim. Although
we find that the trial court erred in granting summary disposition of this claim on the basis of ripeness,
see Crawford County v Sec’y of State, 160 Mich App 88, 92-93; 408 NW2d 112 (1987), the claim
was properly dismissed on another ground. Plaintiff, as a public employee represented by a union and
covered by a collective bargaining agreement, cannot directly pursue a contractual claim against his
employer without first prevailing on a fair representation claim against his union. See Knoke v East
Jackson Public School District, 201 Mich App 480, 485; 506 NW2d 878 (1993); City of Saginaw
v Chwala, 170 Mich App 459, 464-465; 428 NW2d 695 (1988). As a general rule, an employer is
entitled to rely on the finality provision of a grievance and arbitration clause in a collective bargaining
agreement. An exception to the rule is created when the administrative process is seriously flawed by
the union’s breach of its duty to represent employees honestly and in good faith and without invidious
discrimination or arbitrary conduct. Pearl v City of Detroit, 126 Mich App 228, 238; 336 NW2d
899 (1983), quoting Ruzicka v General Motors Corp, 649 F2d 1207, 1212 (CA 6, 1981). Here,
plaintiff did not prevail on his earlier claim that the union breached its duty to represent him fairly.
Accordingly, this claim was properly dismissed.
Affirmed in part, reversed in part, and remanded for further proceedings. We do not retain
jurisdiction.
/s/ Donald E. Holbrook, Jr.
/s/ Henry W. Saad
/s/ William J. Giovan
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