State of Michigan

Department of Civil Service

 

Hearings Division

A Grievance Decision

Paula Mitchell

and

State of Michigan, Department of Licensing and Regulation

Mailing Date:  November 19, 1991

HO 117-91

Docket. No.:

14322

D – Layoff

2 – Prohibited Discrimination

4 – Policy Application

Opinion and Decision

Appearances

Grievant

Reporter

William H. Archer, Esq.

Paula Mitchell

Jane A. Clark, Ryan Reporting

Department of Licensing and Regulation

Merry A. Rosenburg, Esq., Assistant Attorney General

Kathleen M. Wilbur, Director, Department of Licensing and Regulation

Linda Scott, Personnel Officer, Department of Licensing and Regulation

Statement of Facts

Subsequent to his election in November of 1990, Governor John Engler immediately moved to fulfill a campaign pledge to abolish the Department of Licensing and Regulation (“L&R”).  Eventually the Governor and his executive staff decided to move the essential functions of that Department to the Department of ^2Commerce.  The effective date for this transfer was September 1, 1991.

 

As of January of 1991 Grievant Paula Mitchell (“Mitchell”) was a State Executive I who had been Director of L&R’s Office of Personnel Testing and Management Services for over ten years.  Hal W. Ziegler (“Ziegler”) was, at all pertinent times, interim L&R Director.  Immediately after the new administration took office Ziegler initiated the “streamlining” of L&R and continued to assist in the transfer of its essential functions to Commerce, where it would become the Bureau of Occupational and Professional Regulation.  (Joint Exhibit “JT” 7).

 

In the course of that transfer it was clear that many classified civil service positions would be eliminated.  Commerce could use only one of most positions, including personnel director.  Also, even many of the programs administered by former L&R personnel that were to be retained in the new Bureau would be taken over by new people.

 

So it was that on January 2, 1991 Ziegler informed Grievant Mitchell that “[e]ffective immediately the Office of Testing Services (OTS) and the Office of Management Services (OMS) will no longer be under your direction and supervision.” (JE1 att).

 

Mitchell was to “resume her former duties as the Director of the Personnel Division.”  Ziegler’s avowed purpose in making this move was that with impending reorganization and layoffs Mitchell would be extremely busy as personnel director and should not concern herself with the essentially peripheral OTS and OMS functions.  (JT1).

 

^3On January 4, 1991 Mitchell wrote to Ziegler (JT1 att).  Grievant Mitchell said she recognized “management’s inherent right to assign and reassign duties and responsibilities as appropriate.”  But she disagreed with Ziegler’s decision which, she said was made “without cause” to reassign OTS and OMS.  Nevertheless, she told Ziegler that he could rely on her to “provide trusted personnel management, advice, and consultation.”  She said she would “cooperate fully and work directly with [Ziegler] or [his] designee(s) in addressing the challenges that lie ahead.”

 

On January 15, 1991 Ziegler issued two additional memoranda.  The first (JT4) was addressed to Edward Liddle, John Trebilcock and Robert Pennell.  Ziegler created a new departmental entity known as the “Department Services Administration”, to be headed by Liddle.  Pennell and OMS would report to Trebilcock, and Trebilcock would report to Liddle.  On the same day Ziegler wrote to Mitchell (JT5), directing her to “make all changes necessary to implementing the new organization” including the elimination of Trebilcock’s then-position, in which he reported to Mitchell.

 

Ziegler’s actions left Grievant Mitchell with a drastically reduced supervisory function, and, presumably, a perilous future in the reorganized Bureau.  Ziegler himself was demoted to Deputy Director when, on January 19, 1991, Kathleen Wilbur (Wilbur) was appointed as the new--and apparently last--L&R Director.

 

Wilbur, who was called by the Department to testify, said she met Mitchell during the first week she was at L&R.  Wilbur recognized Grievant was the Department’s Personnel Director and ^4had “the entire personnel function.”  Wilbur also testified that she had a meeting with the staff on February 14, 1991 in part to discuss the coming changes in L&R.

 

Wilbur also stated that she was aware of and apparently approved Ziegler’s transfer of supervisory functions away from Mitchell. Wilbur saw the moves as furthering “administrative efficiency” and as resolving a “conflict” in “having a personnel director supervise a number of other persons.”

 

Wilbur testified that she recommended the transfer of L&R to Commerce as the Bureau of Occupational and Professional Regulation immediately prior to the February 14th meeting with the staff.  The recommendation was approved with the understanding that the transfer would begin immediately and become effective on September 1, 1991.

 

After these decisions were in place there began the painful process of eliminating positions and sending layoff notices.  Wilbur stated that in all, 17 L&R positions were eliminated, resulting in 17 layoffs.  Some of these individuals were able to “bump” back into other classified positions, but took pay cuts of between $10,000.00 to $15,000.00.  Indeed, Wilbur herself was demoted when L&R was abolished; she became a deputy director of Commerce (but remained as Director of the new Bureau).  Wilbur said that the absorption of L&R into Commerce will save approximately $2.5 Million in the next two years.

 

On July 17, 1991 Wilbur wrote to Mitchell, informing her that her position as personnel director would be abolished effective August 31, 1991.  (JT3).  Mitchell was advised of her options to bump into an existing classified position pursuant to Civil ^5Service Rules 2-9 and 2-19, or she could accept layoff.  If Mitchell decided to bump into an existing position, it would in all likelihood be a Departmental Administrator XI position representing an approximate $14,000.00 salary reduction.

Position of the Parties

On January 16, 1991 shortly after the Ziegler memorandum, Mitchell filed a grievance alleging that the Department wrongfully altered her conditions of employment, which alteration was, according to page 8 of her brief, arbitrary, discriminatory and tantamount to a demotion:

“[Ziegler’s] decision was not logical, but impulsive and presumptive, based on personal and political motivations.  The decision was made his first day as Interim Director.  Therefore, his decision was precipitous and not well thought out as the Department asserts.

“Mr. Ziegler’s actions were discriminatory in that he singled out the grievant, the only Black female administrator in the Department, for de facto demotion by stripping her position of its duties and responsibilities.

“The transferring of ninety-two percent of Ms. Mitchell’s duties to other administrators constitutes a defacto (sic) demotion in order to justify the elimination of her position.”

On or about July 17, 1991 the (then) L&R Department filed a motion together with supporting affidavits to dismiss the grievance on the grounds, generally, that on January 2, 1991 Mitchell had not been demoted (she had lost no pay and had not been transferred into a lower-status job).  It is true that some of her job duties were reassigned, but that was because the then-interim Director Ziegler considered for reasons of “administrative effi^6ciency” that Mitchell should be relieved of those assignments in order to concentrate on the impending layoffs within the Department.  Thus given the fact that Mitchell’s job duties were properly reassigned and she lost no pay, the Department argues that this forum is without the requisite authority to fashion a remedy.  As stated at pages 17 and 18 of the Department’s brief:

“Nonetheless, assuming Grievant is successful on the merits of her claim that Civil Service Rules were violated in the transfer of some of her job duties on January 2, 1991, what can this forum do to remedy that action?  Back pay cannot be awarded to her because she did not lose any pay or other benefits pursuant to the January 2, 1991 actions.  The supervisory duties over OMS and OTS cannot be returned to her because they have been eliminated pursuant to the reorganization.  Her CES I-B classification cannot be returned to her because that was automatically removed when her Personnel Director position was abolished through the reorganization.  Thus, there is no remedy which this forum can award Grievant under the circumstances of this case, i.e., where she lost no pay or other benefits attendant to the removal of some of their job duties on January 2, 1991, and where her position, including the personnel duties she retained after January 2, 1991, as well as its supervisory duties over OMS and OTS, has been eliminated pursuant to the absorption of L&R into Commerce.”

Discussion

In addition to Article X, section 5 of the Michigan Constitution and Rule 6-4.1 of the Employee Relations Policy, Grievant Mitchell cites Civil Service Rules 1.2 and 2.9 as having been violated by Ziegler’s actions.

 

Although the Department styled its Motion as a dismissal, it is more appropriately a motion for summary disposition.  According to the Michigan Court Rules (which this hearing officer usually follows in these instances) a party may, inter alia, move for dismissal of an action filed against that party on the ^7grounds that the court lacks jurisdiction over the person or property, or on the grounds that the court lacks jurisdiction of the subject matter.  MCR 2.116(C) (1) and (4).  The motion to dismiss is essentially an attack on jurisdiction and process based on the pleadings alone.  Since the Department has filed affidavits and offered Director Wilbur’s testimony, the appropriate standard is that embodied in MCR 2.116(C) (10); that there are no factual issues, and the Department is entitled to judgment as a matter of law.  Huff V Ford Motor Co, 127 Mich App 287, 338 NW2d 387 (1983).  The Department’s motion attacks the factual sufficiency of Grievant’s claim.  Second Benton Harbor Corp V St Paul Title Ins Corp,126 Mich App 580, 337 NW2d 585 (1983).  Where, as here, Grievant’s legal theory is questioned, factual circumstances surrounding the claim are particularly important, Binder v Consumers Power Co, 77 Mich App 343, 258 NW2d 221 (1977).  Yet if, after review, the claim is so clearly unenforceble as a matter of law that no factual development could possibly justify Grievant’s right to recover, Abbott v Beatty Lumber Co, 90 Mich App 500, 282 NW2d 369 (1979), summary disposition is appropriate.

 

An important aspect of the Department’s motion is its argument that even if Ziegler’s actions toward Mitchell were racial, gender-based or even politically motivated, this hearing officer is without any authority to fashion a remedy.  The Department says that because Mitchell did not suffer a pay loss as a direct result of the January 2nd reassignment and because that reassignment was a direct result of a gubernatorial mandate, any imper^8missible discrimination that may have triggered the actions involving Mitchell are “irrelevant to the instant motion.”  (Department’s brief, p 16).

 

This hearing officer is not convinced Mitchell was demoted in the same sense that Otis Hardy was found to have been demoted in Hardy V State Personnel Director, 392 Mich 1, 219 NW2d 61 (1974).  This does not appear to be a de facto demotion into a new position in which there had been no prior Civil Service determination of equality.  Also the OTS and OMS functions had only been assigned to Mitchell after she assumed the personnel function at L&R.  Thus if the Department Director giveth those duties, it is possible that a subsequent Director can taketh them away.

 

Yet this is a long way from saying that a successful gubernatorial candidate’s campaign promise to abolish a department will excuse or justify any otherwise impermissible conduct engaged in by State employees. One does not believe the new Governor himself would advocate such a position.  If Mitchell can show that she was relieved of many of her administrative responsibilities because she was Black, a female or espoused political views with which her employer disagreed, it is not beyond the realm of possibility that some remedy could be created to redress those wrongs.

 

Oliver v State Police, 132 Mich App 558, 349 NW2d 211 (1984), a case with which this hearing officer is very familiar, does not hold that unusual or extraordinary remedies are ipso facto unavailable. The case does hold that any such remedies must be fashioned carefully, within existing legal bounds.  Unresolved factual issues exist regarding whether Mitchell was ^9the victim of impermissible discrimination.  She should have her day to prove those allegations.

 

The legal theory that emerges from the Department’s motion and Mitchell’s response, is that Grievant Mitchell, an otherwise satisfactory and accomplished State employee, was, immediately after the new Governor took office, summarily stripped of many of her duties for some impermissible reason.  A result was that her position in the new Department was eliminated and she was required to “bump” into a lesser position.  She is asking for some adjustment to her employment status as redress.  Whether any of these allegations are true must await a hearing in which witnesses are called and confronted, documents submitted and findings made based on credible evidence.  It cannot be said, based on the current state of the record, that Grievant Mitchell’s claim is so clearly unenforceable as a matter of law that no factual development could possibly justify her right to recover.  Abbott V Beatty Lumber Co, supra.

Decision

WHEREFORE, based on the findings and conclusions contained here, the Department’s motion to dismiss is DENIED, without prejudice to its renewal at any appropriate stage of these proceedings.

 

 

Respectfully submitted,

 

/S/

 

Wallace K. Sagendorph

Hearing Officer

 

This is a publication of the Michigan Civil Service Commission. The written document, as published at the time it was issued, is the most authoritative source of the actual content and format of the decision.