*1 v OF TREASURY VICTORSON DEPARTMENT 12, 1989, Lansing. July at Decided 109225. Submitted Docket No. 16, 1990. appeal applied April Leave to for. Victorson, Treasury Department the of J. Richard 1967, applied for a to an auditor ix level since position May, in 1983. He had taken two tests to become position. appli- eligible one he outscored all other On highly qualified other he scored in the level. cants and on the Victorson, Siegla, hired to who scored lower than was position on the of her sex to a fill the level ix basis plan designed rectify the 1979 affirmative upper posi- of women and minorities in underutilization Department Treasury. The affirmative ac- tions within plan Department Treasury tion had not been used approved by Rights the Civil Commission. Victorson filed suit against Treasury in and others Oakland alleging plan Circuit Court that the affirmative action was void Rights approved by Civil because it had not been sion, plan that the should be declared unconstitutional and void implemented adequate finding of it was without an because discrimination, enjoined and that use should be against pending finding discrimination females. The court, O’Brien, J., granted partial summary disposition John N. plaintiff, finding in favor of that defendants’ failure to seek Rights approval from the Civil Commission of its required by affirmative action the Civil imple- rendered the void. court also found that the plan’s plaintiff and the consti- mentation of tuted sex discrimination under Act and $14,434.76 plaintiff damages. appealed. in Defendants awarded Appeals Court of held: permitted only Affirmative action Commission, from the and a is obtained which has not been References 2d, Jur Discrimination Am Job §§ Application employment. of state law to sex discrimination ALR3d 93. Opinion unapproved plan commission is invalid. An cannot be reviewed the trial court and is void. Affirmed.
Shepherd, P.J., dissented. He would hold that action taken *2 under an affirmative action that has not been discriminatory per unap- the commission is not se nor is an proved plan necessarily Rights void under the Civil In- Act. approval by stead failure obtain the commission means that charges will not insulate an from violated the state’s nondiscrimination law. He would also hold inquiry that a trial court’s in a discrimination case under the Rights Civil Act must include a consideration of the defendant’s explanation justification presumptively or discrimina- tory Rights action and that the Civil Act cannot be used to bar duty affirmative action where the has a under the United States Constitution to eradicate the effects of discrimination. Rights — Rights —
Civil Affirmative Action Plans Approval. —sion permitted only Affirmative action Rights Commission; obtained from the Civil affir- mative which has not been the com- (MCL subject judicial mission is invalid and is not review 37.2210; 3.548[210]). MSA Porter), (by Porter, Charles J. P.C. Charles J. plaintiff. Kelley, Attorney Gary
Frank J. General, and P. Merry Rosenberg, Gordon and A. Assistant Attor- neys Department Treasury. General, for League E.
Felix Rubin, and Dianne Assistant Attorneys Department General, for of Civil and the Civil Commission. Beasley Shepherd, P.J.,
Before: Gribbs, and JJ. appeal right
Gribbs, J. Defendants as of from part plaintiff’s granting the trial court’s order summary disposition pursuant motion for to MCR 183 Opinion op the Court 2.116(0(10). court found that defendants’ trial from the Civil failure to seek of its Commission plan 3.548(210) required 37.2210; MCL MSA found void. The trial court also rendered that the plan’s of the void and the plaintiff sex discrimina- constituted Rights Act, tion under the Civil MCL 37.2101 et 3.548(101) plaintiff seq.; seq., et and awarded damages. $14,434.76 in We affirm.
Plaintiff had been an of defendant May since 1967. In plaintiff applied an audi- for a position. ix taken two tor to become exam level. Plaintiff had tests eligible position. for this the written On plaintiff "highly qualified” scored in the plaintiff the oral exam/interview was the On highest applicant. scored *3 Siegla applied ix also for the auditor position. Siegla "qualified”
level scored a on the Siegla applicants, written test. Unlike the other given was never view. a score for her oral exam/inter- Siegla position fill was hired to the level ix July department promoted Siegla in of 1983. The on the basis of her sex to a 1979 affirma- plan designed rectify tive action upper in underutilization of women and minorities positions Michigan Department within the Treasury. In the absence of an affirmative action plan question there is no Siegla prima Ms. constitute facie would evidence gender against plaintiff of a discrimination for which
cause action would lie. undisputed It is also the affirmative action Treasury which the used when promoted Siegla Ms. had not been Defendants, Commission. both at argument the trial court level at oral before and Opinion rights Court, this did mention that other civil organizations had and that a member of the peal commission had been informed of plan. argument ap However no or below any approval has been made that "de facto” process or waiver had been made. (ED Supp 930, Detroit, See Baker v 483 F 1979), Mich, Detroit, aff'd sub nom Bratton v (CA 1983), 1040; F2d 878 cert den 464 US S 703; Ct L Ed 2d 168 Thus the issue before us is whether a which does not have the Com- mission is invalid. provides
The Civil that an against not discriminate on the religion, origin, age, color, race, basis of national height, weight, sex, status, or marital MCL 3.548(202X1). 37.2202(1);MSA provides: Section 210 of the act A person subject adopt to this article may carry present out to eliminate effects of past discriminatory practices equal op- color, or assure portunity respect religion, race, with na- origin, tional commission under commission or sex if the with filed the and the rules of commission approves plan. 37.2210; [MCL 3.548(210).] impact noncompliance Our resolution of the plan requires §210 on an affirmative action us to address a in conflict which cur- decisions rently exists this Court. *4 Ruppal Dep’t Treasury, App
In
of
163 Mich
219;
plete when an to asserted defense be to a taken sued for an action prior commis- The absence action. affirmative sion requires according Ruppal, approval, to prove legality Rup- disposition. summary to avoid trial court unapproved pal to find an reasoned purpose ignores completely the overall void into account to take Act and fails the Civil the duty public employer’s under affirmative pro- implement such Constitution United States grams. Clemens, 164 Mich v Mt See also Kulek App 51; 416 NW2d Rapids, Bd Grand Service In Van Dam v Civil (1987), panel App 135; 412 held that an affirmative of this Court ap- prior Commission no for which sought proval under 210. The was void had been language § 210 found that Van Dam Court unambiguous an affirma- and that clear and was prior implemented only plan may if be tive action commission given. approval Dam Court The Van procedure ensures stated that such a further will be condoned "reverse discrimination” by society. tolerated within the bounds language § 210 and its review Our compels legislative history that a us to conclude leads to the conclu- literal permitted sion that only prior from the Civil is obtained Rights Commission. statutory construction rule of
It is a standard
*5
323
v
Opinion op the Court
phrase
word or
in a statute
every
should be
Berry
v
plain
accorded its
and ordinary meaning.
City
Belleville,
541, 548;
178 Mich App
444
(1989).
NW2d 222
language
When the
of a statute
is clear and unambiguous,
judicial
interpretation
City
Lansing
is
required
permitted.
neither
nor
Lansing Twp,
v
641, 648-649;
356 Mich
97 NW2d
Auto,
Anderson,
Action
Inc v
(1959);
804
165 Mich
620,
App
628;
(1988),
419
36
NW2d
lv den 430
Exposition
Detroit,
National
Co v
(1988);
Mich 873
25,
App
29;
169 Mich
The mere fact
that a statute
appears
impolitic
or unwise is not sufficient
judicial
construction
City
of Lans-
but
is a matter
Legislature.
ing, 356
Mich
presumed
is
be familiar with the rules of statutory
construc-
Dwyer,
Jaguar Cars,
tion. Joe
Inc,
Inc v
672,
(1988).
App
684;
It opinion is our 210 clearly unambig- uously provides that a voluntary affirmative action plan which has not approved been by commis- sion is invalid. The statute states that such plans may be used they have approved been the commission. This is supported states: (2) This act shall not be as restrict- ing plans, pro- 183 Opinion op the Court grams, eliminate discrimination and or services to appropriate. effects thereof when [MCL 3.548(705)(2). 37.2705(2); Emphasis added.] legislative history Additionally, prior ap- supports argument prerequisite proval necessary for its of a *6 Upon validity. house, its initial submission to the provided § that a affirmative action implemented if the could was filed be the commission and the commission did not original disapprove plan. the HB 4055 20. The passive contemplates a role for the com- version approval. requires mission; § 210 active significant that 705 in its We also consider approved original any omitted reference to version plans. original version stated:
(2) Nothing in this act shall be restricting of affirmative ac- programs tion to eliminate discrimination and the appropriate. 68(2).] effects thereof when 4055 § [HB considerably The final version of statute is different, of the as noted above. We find inclusion "approved plans” a term clear indication unapproved did not intend to validate voluntary plans.
We further note that nowhere
provision
unapproved
Act is
made for an
plan.
simply
Thus,
we
escape
cannot
the conclusion that a literal
prohibits the use of affirmative
approved
by
have not been
action
appears
vein,
In the same
the statute
commission.
by Shepherd, P.
J.
Dissent
put
stamp
validity
any
to
an indelible
approve.
which the commission does
Court in
This
stated
the existence of an
plan operates
employer
to
an
insulate
from liabil-
ity. Ruppal,
practices. employer prac- An whose discriminatory upon minority tices created employees rectify wish to the situation liability. employer § 210, avoid Under can insti- plan. However, tute an affirmative prior some reason fails to seek com- plan, mission of the runs liability employees the risk of who are members unprotected of an class who were harmed plan. reject We defendants’ claim a literal inter- pretation contrary purpose §of 210 is to the *7 previously, Act. As noted where a unambiguous presume statute is the courts must meaning intended the expressed. plainly Ruberg, Mich We willing are not circumvent the role Legislature by creating statutory policy a new plain contrary of 210. intent decision the trial court is affirmed. Beasley, J., concurred. (dissenting). P.J. I
Shepherd, dissent Treasury, reasons stated in App 219; den 429 lv Mich 891