In Re Grant

645 N.W.2d 79 (2002) 250 Mich. App. 13

In re GRANT.
Michael G. Grant, Plaintiff-Appellant,
v.
Meridian Charter Township, Defendant-Appellee.

Docket No. 225226.

Court of Appeals of Michigan.

Submitted January 8, 2002, at Lansing. Decided February 15, 2002, at 9:05 am. Released for Publication May 31, 2002.

Hankins & Flanigan, P.C. (by Dan E. Hankins), Okemos, for the plaintiff.

Plunkett & Cooney, P.C. (by Mary Massaron Ross), Detroit, for the defendant.

Before: FITZGERALD, P.J., and BANDSTRA and K.F. KELLY, JJ.

PER CURIAM.

In this wrongful discharge action, plaintiff appeals as of right from the circuit court's order denying his request for an order of superintending control and to show cause. We affirm.

Citing incompetence, defendant discharged plaintiff—a Vietnam war veteran—from his employment as a paramedic. Plaintiff alleges that the discharge was in violation of the procedures outlined in the Veterans' Preference Act (VPA), M.C.L. § 35.401 et seq., and that in reviewing the matter the circuit court failed to properly employ the applicable standard of review.^[1] Generally, we review a circuit court's decision to deny a request for superintending control for an abuse of discretion. In re Gosnell, 234 Mich.App. 326, 333, 594 N.W.2d 90 (1999). However, to the extent that resolution of this matter requires that we interpret the provisions of the VPA, our review is de novo. See, e.g., Oakland Co. Bd. of Co. Rd. Comm'rs v. Michigan Property & Casualty Guaranty Ass'n, 456 Mich. 590, 610, 575 N.W.2d 751 (1998).

The first issues to be resolved in this matter are whether defendant complied with the procedural requirements of the VPA in discharging plaintiff and, if not, what remedies are available to plaintiff as a result of that failure. Section 402 of the VPA provides, in relevant part, that "[n]o veteran ... shall be removed ... except for ... incompetency; and [that] such veteran shall not be removed ... except after a full hearing before ... the township board...." M.C.L. § 35.402. This section further provides that, at least fifteen days before the pretermination hearing, the veteran must be given written notice of both the cause for removal and the fact that the veteran can only be removed on written order of the board after a full hearing has been held. Id. In this case, it is undisputed that plaintiff was never afforded such notice and was removed before a hearing before defendant's township board, in clear violation of the quoted statutory language. See Sherrod v. Detroit, 244 Mich.App. 516, 523, 625 N.W.2d 437 (2001), quoting Jackson v. Detroit Police Chief, 201 Mich.App. 173, 176, 506 N.W.2d 251 (1993).

However, in addition to the pretermination notice and hearing requirements discussed above, the VPA provides "[t]hat where [a] veteran has been removed ... other than in accordance with ... this act, he shall file a written protest ... within 30 days ...; otherwise the veteran shall be deemed to have waived the benefits and privileges of this act...." M.C.L. § 35.402. Relying on this language, as well as this Court's decision in Adams v. Detroit, 184 Mich.App. 589, 458 N.W.2d 903 (1990), defendant argues that the posttermination hearing held at plaintiff's request was sufficient to meet the requirements of the VPA, despite defendant's failure to afford plaintiff a pretermination hearing. We disagree. This Court more recently discussed the apparent conflict within § 402 as follows:

Defendants rely on Adams [supra at 597, 458 N.W.2d 903], where this Court expressed strong disagreement with the plaintiff's argument that the VPA required his employer to hold a full hearing before his termination. Id. However, another panel of this Court, in Jackson, supra at 177, n. 1, 506 N.W.2d 251, rejected the conclusion in Adams that the employer need not hold a hearing before taking action. We are bound to follow Jackson, which was issued after November 1, 1990. MCR 7.215(H)(1). Moreover, Jackson conforms with the plain language of the act, which states that a "veteran shall not be removed, transferred or suspended for any cause above enumerated from any office or employment, except after a full hearing...." M.C.L. § 35.402[ ] (emphasis added). See also Jackson, supra at 177, 506 N.W.2d 251.

* * *

... [T]he quoted language does not give employers the option to hold the hearing after the suspension. Rather, the language is akin to a preservation requirement in that the employee must either file a written protest within the specified period or waive the privileges of the VPA. See, e.g., Cook v. Jackson, 264 Mich. 186, 188, 249 N.W. 619 (1933). Further, to allow the employer to hold the hearing after the adverse employment action would render nugatory the language stating that the "veteran shall not be ... suspended ..., except after a full hearing...." This Court avoids any construction that would render any part of a statute surplusage or nugatory.

People v. Borchard-Ruhland, 460 Mich. 278, 285, 597 N.W.2d 1 (1999). [Sherrod, supra at 524-525, 625 N.W.2d 437.]

Accordingly, we conclude that defendant violated the VPA when it failed to afford plaintiff a full hearing before discharge. However, although violation of the VPA may be a criminal misdemeanor subject to a fine or imprisonment, M.C.L. § 35.403, a veteran's right to relief under the act is limited. As we stated in Jackson, supra at 177, 506 N.W.2d 251:

[T]he remedy the VPA provides for a violation of the right to notice and a hearing is not automatic reinstatement with back pay. Because plaintiff was demoted without a hearing, he was required to file a written protest with the mayor or he would be deemed to have waived the protections of the VPA. M.C.L. § 35.402[ ]. If plaintiff filed such a protest, the mayor would be required to conduct a hearing, or refer the protest to the city's legal department to conduct a hearing. Id. Plaintiff would be entitled to back pay only if the mayor found plaintiff's allegations to be true and determined that he should be reinstated. Id.; see also Valentine v. Redford Twp Supervisor, 371 Mich. 138, 147, 123 N.W.2d 227 (1963).

Further, we have stated:

MCL 35.402[ ] entitles veterans removed from public employment to back pay only in situations where they are reinstated. We also are reluctant to award back pay in situations where a discharge is substantially proper but procedurally deficient. Because defendants discharged plaintiff for cause, he suffered no economic loss. An award of back pay would serve only to penalize defendants. The record reveals that the delay in holding a Veterans' Preference Act hearing resulted primarily from confusion over who would hold the rather unusual hearing. Under these circumstances, we do not believe an award of back pay would deter future procedural errors and are not inclined to award back pay. [Ingham Co. Employees' Ass'n v. Ingham Circuit Court, 170 Mich.App. 118, 122, 428 N.W.2d 7 (1988).]

The record in the instant matter similarly holds no evidence of an intentional violation of the act. Therefore, we affirm the circuit court's decision because, although it incorrectly held that plaintiff was afforded "all the process that was due and was required," plaintiff is nonetheless entitled to no relief under the VPA. M.C.L. § 35.402, 35.403; Ingham Co. Employees Ass'n, supra; Jackson, supra.

Next, we consider whether the circuit court properly employed the applicable standard of review, i.e., whether the township board's decision to terminate plaintiff was supported by competent, material, and substantial evidence. Smith v. Mayor of Ecorse, 81 Mich.App. 601, 604-605, 265 N.W.2d 766 (1978). See also Egan v. Detroit, 150 Mich.App. 14, 20, 387 N.W.2d 861 (1986) (discussing circuit court review under the VPA). Our review of the circuit court's decision is limited to determining whether the court "applied correct legal principles and whether it misapprehended or grossly misapplied the substantial evidence test to the agency's factual findings." Boyd v. Civil Service Comm., 220 Mich.App. 226, 234, 559 N.W.2d 342 (1996). In other words, this Court reviews the circuit court's decision for clear error. Id. A decision is clearly erroneous when, "on review of the whole record, this Court is left with the definite and firm conviction that a mistake has been made." Id. at 235, 559 N.W.2d 342.

In applying the competent, material, and substantial evidence test, the circuit court must review the entire record, not just those portions supporting the lower tribunal's findings. Great Lakes Sales, Inc. v. State Tax Comm., 194 Mich.App. 271, 280, 486 N.W.2d 367 (1992). Substantial evidence is any evidence that reasonable minds would accept as sufficient to support the decision; it is more than a mere scintilla of evidence but may be less than a preponderance of the evidence. See Korzowski v. Pollack Industries, 213 Mich.App. 223, 228, 539 N.W.2d 741 (1995). If there is sufficient evidence, the circuit court may not substitute its discretion for that of the lower tribunal, even if the court might have reached a different result. Black v. Dep't of Social Services, 195 Mich.App. 27, 30, 489 N.W.2d 493 (1992). Further, the tribunal's findings of fact are afforded deference. THM, Ltd. v. Comm'r of Ins., 176 Mich.App. 772, 776, 440 N.W.2d 85 (1989). This is especially true with respect to witness credibility and evidentiary questions. Arndt v. Dep't of Licensing & Regulation, 147 Mich.App. 97, 101, 383 N.W.2d 136 (1985).

Here, although in denying plaintiff's request the circuit court did not specifically mention whether the township board's decision was supported by "competent, material and substantial evidence on the whole record," Egan, supra at 20, 387 N.W.2d 861, it did, after properly recognizing that it could not substitute its opinion for that of the township board, Black, supra at 30, 489 N.W.2d 493, find that "there was evidence on the record to support [the board's] findings." This oral ruling was a sufficiently proper characterization of the substantial evidence test to lead us to conclude that the circuit court neither misapprehended nor misapplied the applicable standard of review. Boyd, supra. Moreover, after reviewing the record, we are not persuaded that the circuit court clearly erred in finding that the board's factual findings were supported by the requisite quantum of evidence. Id. Although plaintiff presented the township board with testimonial and documentary evidence favorable to his request for reinstatement, additional evidence presented to the board indicated that there were serious concerns regarding plaintiff's competence as a paramedic. Inasmuch as a reasoning mind could accept this latter evidence as sufficient to support the board's decision, Korzowski, supra, we are not left with a definite and firm conviction that a mistake has been made.

We affirm.

NOTES

[1] We have consolidated plaintiff's repetitive issues for appeal.