S T A T E O F M I C H I G A N C O U R T O F A P P E A L S NEIL SWEAT, Plaintiff-Appellant, UNPUBLISHED March 20, 2018 v No. 337597 Wayne Circuit Court DETROIT HOUSING COMMISSION, LC No. 12-005744-CD Defendant-Appellee. Before: TALBOT, C.J., and BECKERING and CAMERON, JJ. PER CURIAM. Plaintiff, Neil Sweat, appeals as of right from an order that granted summary disposition in favor of defendant, the Detroit Housing Commission ( DHC ), on grounds that the law-ofthe-case doctrine and the principle of collateral estoppel operate to bar plaintiff s pursuit of a breach-of-contract claim against the DHC. For the reasons set forth below, we reverse the trial court s order and remand the matter for further proceedings. I. STATEMENT OF RELEVANT FACTS AND PROCEDURAL HISTORY Plaintiff is a former employee of the DHC. While employed with the DHC, plaintiff was responsible for collecting and processing rent checks from tenants and cleaning out housing units to prepare them for new tenants. The DHC s policies called for rent checks to be processed within 24 hours of receipt. As an employee of the DHC, plaintiff was represented for collective bargaining purposes by the American Federation of State, County and Municipal Employees, Council 25, Local 2394 (the union ). In 2008, the DHC suspended plaintiff for 30 days for failure to timely process two rent checks and to clean out housing units properly. In 2009, plaintiff received another 30-day suspension with a recommendation for termination after the DHC alleged, among other things, that plaintiff again failed to timely process rent checks. The DHC further alleged that this failure resulted in delays in posting rent payments to residents accounts and triggered the assessment of approximately $750 in late fees, which the DHC then had to remove from residents accounts. The DHC terminated plaintiff s employment on May 20, 2009. After the DHC discharged plaintiff, he filed grievances with his union. When those did not produce the results he desired, he filed two unfair labor practice charges with the Michigan Employment Relations Commission ( MERC ): he charged the union with breach of the duty of fair representation, and the DHC with wrongful termination and age and disability -1-
discrimination. While these charges were pending, plaintiff filed the instant civil suit against the DHC alleging breach of contract, personal injury, retaliation, and discrimination based on age and disability. Plaintiff based his breach-of-contract claim on allegations that the DHC wrongfully terminated him and breached the collective bargaining agreement. The DHC filed a motion for summary disposition in the trial court, alleging that the sixmonth statute of limitations provided for by 16(a) of the Public Employment Relations Act (PERA), MCL 423.201 et seq., barred plaintiff s civil action. The trial court granted the DHC s motion and plaintiff appealed, arguing in this Court that the PERA and its statute of limitations did not apply to his civil claim, which was governed instead by the six-year statute of limitations found in MCL 600.5807(8). Neil Sweat v Detroit Housing Comm, unpublished per curiam opinion of the Court of Appeals, issued February 2, 2016 (Docket No. 324846), p 1. This Court agreed with plaintiff, reversed that portion of the trial court s order granting the DHC summary disposition on plaintiff s breach-of-contract claim, 1 and remanded the matter for further proceedings. Id. at 4, 5. On remand, the DHC again moved for summary disposition. This time, the DHC relied on the MERC s decision and order disposing of plaintiff s unfair labor practice charge against the union, In re AFSCME, MERC Decision & Order (Case No. CU10 I-039), issued September 11, 2014, and this Court s affirmance of the same, AFSCME Council 25 Local 2394 v Neil Sweat, unpublished per curiam opinion of the Court of Appeals, issued February 2, 2016 (Docket No. 323933), to contend that collateral estoppel and the law-of-the-case doctrine operated to bar plaintiff s continued litigation of his breach-of-contract claim against the DHC. The DHC pointed especially to this Court s remarks in that opinion the MERC was correct in its finding that [plaintiff] failed to raise a genuine issue of material fact regarding whether DHC breached the collective bargaining agreement. 2 AFSCME Council 25 Local 2394, unpub op at 4. The DHC contended that the Court s conclusions in the union case entitled it to summary disposition in the instant case pursuant to MCR 2.116(C)(7) (prior judgment), (C)(10) (no genuine issue of material fact), and (C)(8) (failure to state a claim). Plaintiff responded to the DHC s motion with arguments similar to those raised on appeal. After hearing oral argument on the DHC s motion, the trial court held in its written decision that the law-of-the-case doctrine applied to preclude plaintiff s claim against the DHC for an alleged breach of the collective bargaining agreement and that the principle of collateral estoppel applied to bar relitigation with respect to Plaintiff s establishment of a genuine issue of material fact that DHC breached the [collective bargaining agreement]. In a corresponding order, the trial court granted the DHC summary disposition pursuant to MCR 2.116(C)(7) and (C)(10). Plaintiff filed a motion for reconsideration, which the trial court denied, leading to this appeal. 1 Plaintiff did not challenge the trial court s dismissal of his claims for personal injury, retaliation, and discrimination based on age and disability. 2 As will be discussed below, the Court s remark was factually inaccurate; the MERC did not make a finding as to whether the DHC breached the collective bargaining agreement. -2-
II. ANALYSIS A. LAW OF THE CASE Plaintiff contends that the trial court erred in applying the law-of-the-case doctrine to grant summary disposition in favor of the DHC because plaintiff s civil action against the DHC and his agency action against the union are not a single continuous case. We agree. Whether the law of the case doctrine applies is a question of law that [this Court] reviews de novo. Duncan v Michigan, 300 Mich App 176, 188; 832 NW2d 761 (2013). The law-of-the-case doctrine holds that a ruling by an appellate court on a legal question binds the appellate court and all lower tribunals, and the question may not be differently determined in the same case where the facts remain materially the same. Bruce Twp v Gout, 207 Mich App 554, 557; 526 NW2d 40 (1994). The primary purpose of the doctrine is to maintain consistency and to avoid reconsideration of matters once decided during the course of a single continuing lawsuit. Ashker ex rel Estate of Ashker v Ford Motor Co, 245 Mich App 9, 13; 627 NW2d 1 (2001). In the present case, the trial court erred by relying on the law-of-the-case doctrine to grant the DHC s motion for summary disposition of plaintiff s claims. The law-of-the-case doctrine does not apply to an identical issue decided in a separate action, but only to issues decided in the same case. See id. In order to prevail on his unfair labor practice charge against the union, plaintiff had to prove both that the union breached the duty of fair representation and that the DHC breached the collective bargaining agreement. Knoke v East Jackson Sch Dist, 201 Mich App 480, 488; 506 NW2d 878 (1993). As indicated above, plaintiff based his breach-of-contract claim in part on the DHC s alleged breach of the collective bargaining agreement. Thus, plaintiff s charge against the union and his civil case against the DHC both involve the question of whether the DHC violated the collective bargaining agreement when it discharged him in 2009. However, the actions are not a single continuing lawsuit, Ashker ex rel Estate of Ashker, 245 Mich App at 13, for purposes of application of the law-of-the-case doctrine. This becomes clear when one considers that, whereas the present civil lawsuit remains ongoing, the agency action was closed after the Michigan Supreme Court denied plaintiff s application for leave to appeal this Court s decision. AFSCME Council 25Local 2394 v Neil Sweat, 500 Mich 855 (2016). Because the agency action and the civil suit are not a single continuing lawsuit, the lawof-the-case doctrine does not apply to preclude plaintiff s breach-of-contract claim against the DHC. B. COLLATERAL ESTOPPEL Plaintiff next contends that collateral estoppel does not apply because the MERC did not actually decide whether the DHC breached the collective bargaining. We agree. This Court reviews de novo a trial court s decision regarding the applicability of the principle of collateral estoppel. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008). Collateral estoppel precludes relitigation of an issue in a subsequent, different cause of action between the same parties when the prior proceeding culminated in a valid final judgment and the issue was actually and necessarily determined in that prior proceeding. Leahy v Orion -3-
Twp, 269 Mich App 527, 530; 711 NW2d 438 (2006) (emphasis added); see also Monat v State Farm Ins Co, 469 Mich 679, 682; 677 NW2d 843 (2004) (noting that among the requirements for collateral estoppel to apply, a question of fact essential to the judgment must have been actually litigated and determined by a valid and final judgment ); Dearborn Hts Sch Dist No 7 v Wayne Co MEA/NEA, 233 Mich App 120, 129; 592 NW2d 408, 413 (1998) (indicating that where an administrative agency necessarily decides an issue, the agency s ruling may preclude relitigation of that issue). Collateral estoppel applies in cases where the MERC has made an administrative determination of the same issue. See Senior Accountants and Appraisers Ass n v City of Detroit, 60 Mich App 606, 612; 231 NW2d 479 (1975) (indicating that the MERC s conclusion that the plaintiffs were not entitled to back pay estopped them from relitigating the issue). The DHC observes on appeal that its alleged breach of the collective bargaining agreement was extensively litigated in plaintiff s charge against the union, that the MERC found that the DHC had not breached the collective bargaining agreement, and that this Court affirmed that decision. Reasoning therefrom, the DHC contends that the MERC s finding becomes the law of the case and, therefore, that the trial court correctly estopped plaintiff from relitigating the issue. However, as alluded to above, the MERC did not actually find that the DHC breached the collective bargaining agreement, nor was it necessary for the MERC to do so in order to dispose of plaintiff s unfair labor practice charge against the union. As previously indicated, in order to prevail in his unfair labor practice charge against the union, plaintiff had to prove two things: (1) that the union breached its duty of fair representation, and (2) that the DHC breached the collective bargaining agreement. Knoke, 201 Mich App at 488. Failure to prove either doomed plaintiff s claim against the union. A fair reading of the MERC s decision and order reveals that the agency narrowly focused its analysis on whether plaintiff raised a genuine issue of material fact regarding the union s alleged breach of the duty of fair representation. It made no factual findings or legal conclusions regarding the DHC s alleged breach of the collective bargaining agreement. The ALJ framed the dispositive issue as whether the Union s [sic] acted unreasonably in response to the allegations [plaintiff] was facing. The MERC also approved of the ALJ s approach, noting: The ALJ made no findings as to whether [plaintiff] was in fact guilty of the incidents for which he was disciplined because the ALJ correctly noted that such a finding would not be relevant in reaching his decision. The issue, noted the ALJ, is whether [the union] had evidence of [plaintiff s] innocence, evidence which would make its decision not to arbitrate the grievance irrational, arbitrary or made in bad faith. [Plaintiff] did not proffer any such evidence. We, therefore, agree with the ALJ that this case demonstrates an ordinary disagreement between an employee and his union over how far to take a grievance. The ALJ correctly concluded that [plaintiff] failed to demonstrate that [the union s] decision not to advance the grievance to arbitration was arbitrary, irrational, made in bad faith, dishonest or unreasonable. [In re AFSCME, MERC Decision and Order (Case No. C11 C-501), issued August 14, 2014, p 4.] As the foregoing indicates, the agency limited its findings of fact and conclusions of law to those necessary to determine whether the union breached the duty of fair representation. Even -4-
if the proceedings in the administrative action were such that the MERC could have made findings of fact in support of a conclusion that the DHC did not breach the collective bargaining agreement, the MERC made no such findings or conclusion, nor was it required to do so once plaintiff had failed to establish a genuine issue of material fact about one of the two requirements necessary to prevail on his charge against the union. In addition, even if the record supported such a finding, this Court generally does not engage in fact-finding or credibility assessment. See Dep t of Comm Health v Risch, 274 Mich App 365, 372; 733 NW2d 403 (2007) (noting that it is not the function of reviewing courts to assess witness credibility or resolve conflicts in the evidence). Therefore, because the MERC did not actually and necessarily determine, and this Court could not determine, whether the DHC breached the collective bargaining agreement, the trial court erred in relying on the MERC s decision in In re AFSCME, and this Court s affirmance in AFSCME Council 25 Local 2394 to grant the DHC s summary disposition motion based on collateral estoppel. In light of our conclusion that neither the law-of-the-case doctrine nor collateral estoppel applies, we need not address plaintiff s remaining issues and arguments. Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. /s/ Michael J. Talbot /s/ Jane M. Beckering /s/ Thomas C. Cameron -5-