MARK ENSZER V CIVIL SERVICE COMMISSION (Per Curiam Opinion)
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STATE OF MICHIGAN
COURT OF APPEALS
MARK A. ENSZER,
UNPUBLISHED
June 28, 2011
Petitioner-Appellee,
v
No. 295439
Ingham Circuit Court
LC No. 08-000569-AA
CIVIL SERVICE COMMISSION,
Respondent-Appellant.
Before: MARKEY, P.J., and FITZGERALD and SHAPIRO, JJ.
PER CURIAM.
Respondent appeals by leave granted from the circuit court’s order reversing its decision
to affirm the Department of Correction’s (DOC’s) termination of petitioner’s employment. We
vacate the circuit court’s order and remand to the circuit court for entry of an order affirming
respondent’s decision.
Petitioner had been employed with the DOC’s Saginaw Correctional Facility for 20
years, 13 of them as a Resident Unit Manager, which was a supervisory position and a position
of authority and trust. On October 1, 2005, petitioner attempted to leave a Cabela’s store with
nearly $2,000 worth of merchandise without paying. Afterwards, an investigator discovered that
petitioner had, on several occasions, filled up his car with gas and left without paying; that he
had questionable disputes with credit card companies in which he claimed he had never received
purchased items and demanded a refund, or claimed that he had returned items; that one online
merchant refused to do business with petitioner because he had claimed that nine separate items
were either lost or returned; that two merchants recalled receiving empty boxes from petitioner
when he claimed to have returned items; and that another merchant claimed that petitioner
“committed fraud with them” and that petitioner had “‘burned’ them twice.”
Based primarily on the Cabela’s incident, the DOC terminated petitioner’s employment.
After he contested the discharge, the Employment Relations Board (ERB) recommended that the
discharge be upheld. Respondent agreed. Petitioner appealed respondent’s decision to the
circuit court. The circuit court concluded that there was sufficient evidence to establish that
petitioner had violated work rules, but remanded for further proceedings related to the decision
to terminate petitioner’s employment rather than impose some lesser form of discipline. On
remand, the DOC again decided to terminate petitioner’s employment and the ERB again
recommended that the discharge be upheld. Respondent approved the ERB’s recommendation.
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Nevertheless, the circuit court reversed respondent’s decision and ordered that petitioner be
subjected to discipline of two years’ suspension without pay and that he be reinstated to his
former DOC position.
Respondent argues that the circuit court’s determination should be reversed because
respondent’s decision was authorized by law and supported by competent, material, and
substantial evidence on the whole record, and was neither arbitrary nor capricious. Respondent
further contends that its decision was not given due deference and that the circuit court
impermissibly reversed respondent’s determination merely because it disagreed with the
balancing of the evidence. We agree.
We review a circuit court’s review of an agency’s decision under the clearly erroneous
standard. Glennon v State Employees’ Retirement Bd, 259 Mich App 476, 478; 674 NW2d 728
(2003). In reviewing an administrative agency’s decision, a circuit court “is limited to
determining whether the decision was contrary to law, was supported by competent, material,
and substantial evidence on the whole record, was arbitrary or capricious, was clearly an abuse
of discretion, or was otherwise affected by a substantial and material error of law.” Dignan v
Mich Pub Sch Employees Retirement Bd, 253 Mich App 571, 576; 659 NW2d 629 (2002); see
also Const 1963, Art 6, § 28. Substantial evidence means “the amount of evidence that a
reasonable mind would accept as sufficient to support a conclusion. While it consists of more
than a scintilla of evidence, it may be substantially less than a preponderance.” In re Payne, 444
Mich 679, 692; 514 NW2d 121 (1994). When this Court reviews a circuit court’s review of an
agency’s decision, we “must determine whether the lower court applied correct legal principles
and whether it misapprehended or grossly misapplied the substantial evidence test to the
agency’s factual findings.” Boyd v Civil Service Comm, 220 Mich App 226, 234; 559 NW2d
342 (1996). We overturn the circuit court’s decision “only if we are left with the definite and
firm conviction that a mistake has been committed.” Glennon, 259 Mich App at 478.
MCL 24.306, a provision of the Administrative Procedures Act, states in pertinent part:
(1) Except when a statute or the constitution provides for a different scope of
review, the court shall hold unlawful and set aside a decision or order of an
agency if substantial rights of the petitioner have been prejudiced because the
decision or order is any of the following:
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(d) Not supported by competent, material and substantial evidence on the whole
record.
(e) Arbitrary, capricious or clearly an abuse or unwarranted exercise of
discretion.
Judicial review of respondent’s decisions is established by MCL 600.631. If substantial
evidence for an agency’s decision exists, “the circuit court may not substitute its judgment for
that of the agency, even if the court might have reached a different result.” Vanzandt v State
Employees’ Retirement Sys, 266 Mich App 579, 584; 701 NW2d 214 (2005). Similarly, a court
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may not substitute its findings for that of an agency merely because alternative findings also
could have been supported by substantial evidence on the record. Payne, 444 Mich at 692.
Deference must be given to an agency’s findings of fact, particularly as to evidentiary conflicts
and credibility of witnesses. Vanzandt, 266 Mich App 588. Additionally, courts must give
“great deference to administrative expertise in choosing between two reasonably differing
views.” UPS, Inc v Bureau of Safety & Regulation, 277 Mich App 192, 201; 745 NW2d 125
(2007).
We find that there was substantial evidence to support respondent’s decision concluding
that the DOC’s discharge of petitioner was appropriate. A surveillance tape from Cabela’s
shows petitioner removing tags from merchandise, placing more than $1,900 worth of
merchandise into a shopping cart, and exiting the store without stopping at the cash registers.
Furthermore, while petitioner’s conduct ultimately resulted in a no-contest plea to a
misdemeanor conviction, his conduct was sufficiently egregious such that he was charged with a
felony. In light of the surveillance video evidence and the criminal charge and conviction
against petitioner, it cannot be said that no reasonable mind would accept the evidence as
sufficient to support respondent’s decision to affirm the DOC’s discharge of petitioner.
Although it might have been reasonable to conclude that a lesser discipline was warranted based
on the evidence, the decision of whether to discharge petitioner represented a choice between
“two reasonably differing views.” UPS, 277 Mich App at 201. Further, the DOC discipline
coordinator testified that lesser sanctions, including demotion, were considered, but rejected in
light of petitioner’s actions, the charges, the fact that he was a high ranking supervisor, and the
fact that, even if he were demoted, he would still be supervising some prisoners incarcerated for
actions similar to his own. While the circuit court could have reasonably disagreed with
respondent’s decision to affirm the DOC’s discharge of petitioner, the circuit court’s finding that
respondent’s decision was unsupported by substantial evidence constituted a substitution of the
circuit court’s judgment for that of respondent’s. It did not reflect the appropriate level of
deference that was owed to respondent. Vanzandt, 266 Mich App at 584. Therefore, the circuit
court misapplied the substantial evidence test to respondent’s findings.
Further, it appears that the circuit court misunderstood the burden of proof regarding the
appropriateness of the discharge decision. The circuit court agreed that the DOC established just
cause to discipline petitioner. However, it then held, “[I]t’s the burden of the Department to AShow a violation, and B- show by a preponderance of the evidence that the sanction imposed is
appropriate.” This is contrary to CS Regulation 8.01, Standard 4(B)(13)(c)(2), which provides:
If the appointing authority proves that there was just cause to discipline the
grievant, a hearing officer cannot alter the discipline imposed by the appointing
authority unless the grievant proves by a preponderance of the evidence that the
particular discipline imposed by the appointing authority (1) violated a civil
service rule or regulation, (2) violated a departmental work rule, or (3) was
arbitrary or capricious.
Thus, contrary to the circuit court’s assertion, once the DOC proved just cause, it did not bear the
burden to show the discipline was appropriate. Rather, petitioner bore the burden to show the
discipline was inappropriate.
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Furthermore, even assuming that the circuit court had recognized that petitioner, rather
than the DOC, bore the burden of proof related to whether the decision was arbitrary or
capricious, the circuit court clearly erred in concluding that respondent’s decision was arbitrary
and capricious. “Arbitrary means fixed or arrived at through an exercise of will or by caprice,
without consideration or adjustment with reference to principles, circumstances, or significance.
Capricious means apt to change suddenly, freakish, or whimsical.” Binsfeld v Dep’t of Natural
Resources, 173 Mich App 779, 786; 434 NW2d 245 (1988).
Following its initial review of respondent’s decision, the circuit court remanded and
ordered the DOC to “consider the entire record, including [petitioner’s] work and community
service record.” Additionally, the court indicated that discharge would be arbitrary and
capricious unless the DOC could show that, prior to petitioner’s discharge, it had discharged
other employees for behavior similar to petitioner’s. Relying on the case of Battiste v Michigan
Dep’t of Social Services, 154 Mich App 486; 398 NW2d 447 (1986), the court concluded that in
the absence of such a showing, only a two-year suspension would be warranted.
The circuit court’s reliance on Battiste is misguided. It does not stand for the absolute
proposition that discipline involving suspension without pay in excess of two years would be
excessive, as well as arbitrary and capricious. Battiste involved a Department of Social Services
hearing officer who ordered his supervisor and deputy director to “cease and desist” from
ordering rehearings of his cases. Battiste, 154 Mich App at 490. Thereafter, the hearing officer
was dismissed for conduct unbecoming a state employee and failure to carry out the duties of his
office. Id. at 491. The circuit court remanded the case to the ERB, directing that any sanction
exceeding two years’ suspension without pay would be arbitrary and capricious in that case. Id.
at 492. This Court upheld the circuit court’s remand, finding that it was reasonable and
supported by substantial evidence on the record based on the facts of that case. Id. at 494-495.
However, the Court’s decision to uphold the circuit court’s remand order was based on its
holding that “a department’s failure to consider progressive discipline” is arbitrary where an
employee’s prior work record is unblemished. Battiste, 154 Mich App at 493-494 (emphasis
added). Here, the DOC considered the lesser discipline of demotion. Moreover, the Battiste
Court specifically recognized that “[a] single incident of misconduct may be so gross and
egregious as to warrant dismissal.” Id. at 493.
We note that, pursuant to the circuit court’s remand order, the DOC brought to the circuit
court’s attention three cases involving discharged employees who had committed theft-related
violations. As noted by the ERB, the theft cases indicate that the DOC has imposed the
discipline of discharge for substantially lesser violations than petitioner committed. In particular,
none of the three theft cases matched petitioner’s case in terms of value of items stolen. The
DOC cases also show that the DOC had discharged lower level employees for conduct similar to
petitioner’s. However, the circuit court found that the cases identified by the DOC were
distinguishable. The circuit court reasoned that, unlike the former DOC employees in the cases
brought forth by respondent, petitioner had not stolen from the department, was not on duty at
the time of the offense, was not wearing a uniform, and was not in possession of drugs. The
circuit court’s distinctions from, and ultimate rejection of, these cases constituted a denial of the
appropriate level of deference due to an administrative agency. While no case brought forth by
the DOC had the exact same facts, an identical analogy is not needed to show consistency. The
distinctions drawn by the circuit court are, at best, supportive of an alternative reasonable
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conclusion (i.e., that respondent should have imposed a lesser measure of discipline), which
would require the circuit court to defer to respondent’s reasonable conclusion. UPS, 277 Mich
App at 201.
We recognize that petitioner produced several DOC cases—both theft-related and nontheft-related—that did not result in discharge. Petitioner argued that the discipline imposed on
him was “unduly harsh” when compared to lesser disciplinary measures imposed on other
employees. Petitioner’s argument concerning proportional discipline fails to consider the
appropriate level of deference that is afforded agency decisions under Michigan law, as
articulated in Payne, 444 Mich at 692; Vanzandt, 266 Mich App 588; and UPS, 277 Mich App at
201. Each case identified, whether by the DOC or by petitioner, is factually distinguishable.
That the DOC disciplinary decisions and respondent’s review of them have varied between
discharge and lesser forms of punishment for somewhat similar behavior does not demonstrate
that the DOC’s determination in petitioner’s case was disproportionate or “unduly harsh.”
Given the theft cases brought forward by the DOC, we conclude that respondent’s
decision to uphold petitioner’s discharge was neither “arrived at through an exercise of will,” nor
“apt to change suddenly.” Binsfeld, 173 Mich at 786. Instead, it appears to have been guided by
the DOC’s policy directive, as well as a prevailing trend to discharge in cases involving theft.
Therefore, the circuit court’s finding that respondent’s determination to uphold petitioner’s
discharge was arbitrary and capricious constitutes a misapplication of legal principles. For these
reasons, we are left with the definite and firm conviction that the circuit court committed a
mistake. Glennon, 259 Mich at 478.
The record clearly supports respondent’s decision to dismiss petitioner. Moreover, in
light of the cases brought forth by the DOC that illustrate the proportionality of petitioner’s
dismissal as compared to similar discharge cases involving acts of theft, it is clear that
respondent’s decision was neither arbitrary nor capricious. Because there are no unresolved
material issues to be decided by the circuit court, we vacate the circuit court’s order and reinstate
respondent’s decision. See Griffin v Civil Serv Comm, 134 Mich App 413, 421 n 2; 351 NW2d
310 (1984).
We vacate the circuit court’s order and remand for entry of an order affirming
respondent’s decision. We do not retain jurisdiction.
/s/ Jane E. Markey
/s/ E. Thomas Fitzgerald
/s/ Douglas B. Shapiro
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