Victorson v. Department of Treasury
Victorson v. Department of Treasury
Opinion of the Court
Defendants appeal as of right from the trial court’s order granting in part plaintiff’s motion for summary disposition pursuant to MCR
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
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
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
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 grams, or services to eliminate discrimination and the effects thereof when appropriate. [MCL 37.2705(2); MSA 3.548(705)(2). Emphasis added.]
Additionally, the legislative history of the Civil Rights Act supports the argument that prior approval of a plan is a necessary prerequisite for its validity. Upon its initial submission to the house, § 210 provided that a voluntary affirmative action plan could be implemented if the plan was filed with the commission and the commission did not disapprove of the plan. HB 4055 § 20. The original version contemplates a passive role for the commission; § 210 requires active approval.
We also consider it significant that § 705 in its original version omitted any reference to approved plans. The original version stated:
(2) Nothing in this act shall be interpreted as restricting the implementation of affirmative action programs to eliminate discrimination and the effects thereof when appropriate. [HB 4055 § 68(2).]
The final version of the statute is considerably different, as noted above. We find inclusion of the term "approved plans” a clear indication that the Legislature did not intend to validate unapproved voluntary plans.
We further note that nowhere in the Civil Rights Act is provision made for an unapproved voluntary affirmative action plan. Thus, we simply cannot escape the conclusion that a literal reading of the statute prohibits the use of affirmative action plans which have not been approved by the commission. In the same vein, the statute appears
Civil rights statutes such as that at issue here force employers to make choices about their employment practices. An employer whose past practices created a discriminatory effect upon minority employees may wish to rectify the situation to avoid liability. Under § 210, an employer can institute an affirmative action plan. However, if for some reason the employer fails to seek prior commission approval of the plan, the employer runs the risk of liability to employees who are members of an unprotected class and who were harmed by the plan.
We reject defendants’ claim that a literal interpretation of § 210 is contrary to the purpose of the Civil Rights Act. As noted previously, where a statute is unambiguous the courts must presume that the Legislature intended the meaning it plainly expressed. Ruberg, 167 Mich App 16. We are not willing to circumvent the role of the Legislature by creating a new statutory policy contrary to the plain intent of § 210.
The decision of the trial court is affirmed.
Dissenting Opinion
(dissenting). I dissent for the reasons stated in Ruppal v Dep’t of Treasury, 163 Mich App 219; 413 NW2d 751 (1987), lv den 429 Mich 891 (1987).
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