Victorson v. Department of Treasury

454 N.W.2d 256, 183 Mich. App. 318
CourtMichigan Court of Appeals
DecidedApril 16, 1990
DocketDocket 109225
StatusPublished
Cited by15 cases

This text of 454 N.W.2d 256 (Victorson v. Department of Treasury) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Victorson v. Department of Treasury, 454 N.W.2d 256, 183 Mich. App. 318 (Mich. Ct. App. 1990).

Opinions

Gribbs, J.

Defendants appeal as of right from the trial court’s order granting in part plaintiff’s motion for summary disposition pursuant to MCR [320]*3202.116(0(10). The trial court found that defendants’ failure to seek approval from the Civil Rights Commission of its voluntary affirmative action plan as required by MCL 37.2210; MSA 3.548(210) rendered the plan void. The trial court also found that the implementation of the void plan and the plan’s effect on plaintiff constituted sex discrimination under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and awarded plaintiff $14,434.76 in damages. We affirm.

Plaintiff had been an employee of defendant Department of Treasury since 1967. In May of 1983 plaintiff applied for a promotion to an auditor ix level position. Plaintiff had taken two tests to become eligible for this position. On the written exam plaintiff scored in the "highly qualified” level. On the oral exam/interview plaintiff was the highest scored applicant.

Joanne Siegla also applied for the auditor ix level position. Siegla scored a "qualified” on the written test. Unlike the other applicants, Siegla was never given a score for her oral exam/interview. Siegla was hired to fill the level ix position in July of 1983. The department promoted Siegla on the basis of her sex pursuant to a 1979 affirmative action plan which was designed to rectify the underutilization of women and minorities in upper level positions within the Michigan Department of Treasury. In the absence of an affirmative action plan there is no question that the promotion of Ms. Siegla would constitute prima facie evidence of gender discrimination against plaintiff for which a cause of action would lie.

It is also undisputed that the affirmative action plan which the Department of Treasury used when it promoted Ms. Siegla had not been approved by the Civil Rights Commission. Defendants, both at the trial court level and at oral argument before [321]*321this Court, did mention that other civil rights organizations had approved the plan and that a member of the commission had been informed of the plan. However no argument below or on appeal has been made that any "de facto” approval or waiver of the approval process had been made. See Baker v Detroit, 483 F Supp 930, 994 (ED Mich, 1979), aff'd sub nom Bratton v Detroit, 704 F2d 878 (CA 6, 1983), cert den 464 US 1040; 104 S Ct 703; 79 L Ed 2d 168 (1984).

Thus the only issue before us is whether a voluntary affirmative action plan which does not have the prior approval of the Civil Rights Commission is automatically invalid.

The Civil Rights Act provides that an employer may not discriminate against an employee on the basis of religion, race, color, national origin, age, sex, height, weight, or marital status, MCL 37.2202(1); MSA 3.548(202X1).

Section 210 of the act provides:

A person subject to this article may adopt and carry out a plan to eliminate present effects of past discriminatory practices or assure equal opportunity with respect to religion, race, color, national origin, or sex if the plan is filed with the commission under rules of the commission and the commission approves the plan. [MCL 37.2210; MSA 3.548(210).]

Our resolution of the impact of noncompliance with §210 on an affirmative action plan requires us to address a conflict in decisions which currently exists in this Court.

In Ruppal v Dep’t of Treasury, 163 Mich App 219; 413 NW2d 751 (1987), lv den 429 Mich 891 (1987), a panel of this Court held that noncompliance with § 210 did not render a voluntary affirmative action plan void. The Ruppal case involved [322]*322the promotion of Joanne Siegla pursuant to a Department of Treasury affirmative action plan which was instituted in September, 1983, and for which prior approval of the Civil Rights Commission was not sought.

The Ruppal Court interpreted § 210 as a complete defense to be asserted by an employer when sued for an action taken pursuant to a voluntary affirmative action. The absence of prior commission approval, according to Ruppal, requires an employer to prove the legality of the plan to the trial court to avoid summary disposition. The Ruppal Court reasoned that to find an unapproved plan completely void ignores the overall purpose of the Civil Rights Act and fails to take into account the public employer’s affirmative duty under the United States Constitution to implement such programs. See also Kulek v Mt Clemens, 164 Mich App 51; 416 NW2d 321 (1987).

In Van Dam v Civil Service Bd of Grand Rapids, 162 Mich App 135; 412 NW2d 260 (1987), a panel of this Court held that an affirmative action plan for which no prior Civil Rights Commission approval had been sought was void under § 210. The Van Dam Court found that the language of § 210 was clear and unambiguous and that an affirmative action plan may be implemented only if prior commission approval is given. The Van Dam Court further stated that such a procedure ensures that "reverse discrimination” will be condoned only within the bounds tolerated by society.

Our review of the language of § 210 and its legislative history compels us to conclude that a literal reading of the statute leads to the conclusion that affirmative action plans are permitted only if prior approval is obtained from the Civil Rights Commission.

It is a standard rule of statutory construction [323]*323that every word or phrase in a statute should be accorded its plain and ordinary meaning. Berry v City of Belleville, 178 Mich App 541, 548; 444 NW2d 222 (1989). When the language of a statute is clear and unambiguous, judicial interpretation is neither required nor permitted. City of Lansing v Lansing Twp, 356 Mich 641, 648-649; 97 NW2d 804 (1959); Action Auto, Inc v Anderson, 165 Mich App 620, 628; 419 NW2d 36 (1988), lv den 430 Mich 873 (1988); National Exposition Co v Detroit, 169 Mich App 25, 29; 425 NW2d 497 (1988), lv den 432 Mich 853 (1989).

The mere fact that a statute appears impolitic or unwise is not sufficient for judicial construction but is a matter for the Legislature. City of Lansing, 356 Mich 648. The Legislature is presumed to be familiar with the rules of statutory construction. Joe Dwyer, Inc v Jaguar Cars, Inc, 167 Mich App 672, 684; 423 NW2d 311 (1988). The Legislature must have intended the meaning it plainly expressed and the statute must be enforced as written. Smith v Ruberg, 167 Mich App 13, 16; 421 NW2d 557 (1988). "The wisdom of the provision in question in the form in which it was enacted is a matter of legislative responsibility with which courts may not interfere.” Melia v Employment Security Comm, 346 Mich 544, 561; 78 NW2d 273 (1956).

It is our opinion that § 210 clearly and unambiguously provides that a voluntary affirmative action plan which has not been approved by the commission is invalid. The statute states that such plans may be used only if they have been approved by the commission. This reading of the statute is supported by § 705, which states:

(2) This act shall not be interpreted as restricting the implementation of approved plans, pro[324]*324grams, or services to eliminate discrimination and the effects thereof when appropriate. [MCL 37.2705(2); MSA 3.548(705)(2).

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Victorson v. Department of Treasury
454 N.W.2d 256 (Michigan Court of Appeals, 1990)

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Bluebook (online)
454 N.W.2d 256, 183 Mich. App. 318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/victorson-v-department-of-treasury-michctapp-1990.