Williams v. City of Detroit , 141 Mich. App. 535 ( 1985 )

Per Curiam.

Plaintiff appeals as of right from an order of summary judgment dismissing her complaint against the City of Detroit for improper layoff.

The facts in this case are not in dispute. Plaintiff was first hired by the city in 1974 in the data processing department. In November of 1980, she received a notice informing her that she would be laid off from her job as a keypunch operator (KPO) in favor of an employee with greater seniority who had lost her job when the city closed Detroit General Hospital in October of 1980. Plaintiff was immediately placed on a city-wide "blocking” list which entitled her to any KPO opening in the city prior to the position’s being filled through promotion or by new hire. In 1982, plaintiff accepted a KPO position in the water department.

Plaintiff filed this action in circuit court on October 5, 1982, raising three claims. Plaintiff first alleged that the city had violated the terms of a collective-bargaining agreement with her union by subcontracting out data processing work during her layoff. She further alleged that the city had violated those provisions of the Comprehensive Employment and Training Act (CETA), 29 USC 801 et seq., repealed by Pub L No. 97-300, Title I, § 184(a)(1), 96 Stat 1357 (1982), which prohibited public employees from being displaced by CETA workers. Finally, plaintiff relied upon 42 USC 1983 and alleged that she had been laid off in violation of her First Amendment rights to free speech and to petition the government for redress of grievances. Throughout her employment, plaintiff had protested in various forums the city’s practice of subcontracting out data processing work.

The city filed a motion for summary judgment under both GCR 1963, 117.2(1) and GCR 1963, 117.2(3), raising several defenses. The trial court heard oral arguments and granted the city’s motion "in its entirety”. We note with dismay the trial court’s refusal to articulate upon plaintiffs request the specific reasons for dismissing her complaint. Where a motion to dismiss is brought under different court rules and raises various legal theories, the trial court should identify the grounds relied upon in granting dismissal. On appeal in this case, we will consider each of the plaintiff’s three claims and determine whether summary judgment was appropriately granted under either GCR 1963, 117.2(1) or GCR 1963, 117.2(3) or whether the case was properly dismissed under some other court rule.

We affirm the trial court’s dismissal of plaintiffs claim that the city had violated the collective-bargaining agreement. Immediately following her layoff, plaintiff utilized the collectively bargained for grievance procedures and arbitrated the issue of "Whether or not the City violated the Master Agreement when it laid off the grievant on November 7, 1980”. The arbitrator held that the city had the right to subcontract out data processing work while employees were laid off according to the terms of the master agreement and denied the petitioner’s grievance. In her circuit court action, plaintiff neither challenges the arbitrability of the subcontracting issue nor does she contend that the arbitrator exceeded her authority in resolving the subcontracting issue. City of Saginaw v Saginaw Firefighters Ass’n, Local 422, IAFF, AFL-CIO, 130 Mich App 401; 343 NW2d 571 (1983). We find the arbitration decision in this case binding on the issue of whether the city had violated the collective-bargaining agreement in subcontracting out data processing work during the plaintiffs layoff. Plaintiff is thus barred from relitigating this claim in an independent circuit court action and accelerated judgment should have been granted under GCR 1963, 116.1(5).

Plaintiffs claim that the city violated certain provisions of CETA is not actionable and that portion of her complaint was properly dismissed under GCR 1963, 117.2(1). CETA does not create a private cause of action against a prime sponsor or any other recipient of CETA funds. Uniformed Firefighters Ass’n, Local 94, IAFF, AFL-CIO v City of New York, 676 F2d 20 (CA 2, 1982); CETA Workers’ Organizing Committee v City of New York, 617 F2d 926, 934 (CA 2, 1980). Plaintiffs sole remedy in challenging the city’s compliance with CETA is the exclusive administrative remedy provided under the act, subject to judicial review. Id.

Given our resolution of the first two issues, we conclude that plaintiffs claim under 42 USC 1983 must also fail. Essentially, plaintiffs claim is that the city improperly laid her off in retaliation for the exercise of her First Amendment rights to free speech and to petition the government for redress of grievances.¹ Plaintiffs constitutional claim thus rises or falls on the finding that her layoff was improper because it was in violation of the collective-bargaining agreement or in violation of CETA.²

The city’s right to lay plaintiff off while subcontracting out data processing work has already been decided through arbitration and that decision is binding on this Court. Plaintiffs layoff was not improper under the terms of the collective-bargaining agreement.

Additionally, plaintiff failed to pursue her administrative remedy regarding her CETA claims. Where there is an elaborate and exclusive administrative remedy for the enforcement of a federal right, a § 1983 lawsuit may not be used to substitute for or circumvent that administrative remedy. Pennhurst State School & Hospital v Halderman, 451 US 1, 28; 101 S Ct 1531; 67 L Ed 2d 694 (1981); Middlesex County Sewerage Authority v National Sea Clammers Ass’n, 453 US 1, 19-21; 101 S Ct 2615; 69 L Ed 2d 435 (1981).

We conclude that no factual development could support a finding that plaintiff was improperly laid off in retaliation for the exercise of her First Amendment rights. We therefore find that plaintiffs § 1983 claim was properly dismissed under GCR 1963, 117.2(3) on the collective-bargaining agreement issue and under GCR 1963, 116.1(5) on the CETA issue.

Affirmed.

1 On at least two occasions since 1979, plaintiff had appeared before the Detroit City Council protesting the city’s practice of subcontracting out data processing work. Apparently, council investigated the allegation and ordered a report on the subject.

2 Plaintiff does not allege that either the layoff mechanism or the CETA program were manipulated in an attempt to ensure plaintiff’s layoff.