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Sherrod v. City Of Detroit2/2/2001
FOR PUBLICATION
9:05 a.m.
Defendants appeal as of right from an order denying their motions for judgment notwithstanding the verdict, new trial, and remittitur. We reverse. This case requires us to review the provisions of the Veterans Preference Act (VPA), MCL 35.401 et seq.; MSA 4.1221 et seq., and their relationship to the due process clause of the United States Constitution, US Const, Am XIV.
I. Introduction
The parties do not dispute the essential facts of this case. Plaintiff began his employment with the Detroit Police Department in 1969, and ultimately rose to the rank of inspector. On July 12, 1994, between 5:30 a.m. and 7:00 a.m., plaintiff was on duty at his regular assignment in the field duty section. During that period, he received notice of an incident involving a barricaded gunman in the 9th Precinct, which was under his jurisdiction as field duty officer. Plaintiff did not respond to the incident, although he was in radio contact with the officers at the scene.
As a result of plaintiff's failure to report to the scene of the incident, he received a charge of neglect of duty under department regulations. On October 25, 1994, the Police Trial Board held a hearing on the matter. Plaintiff had legal representation at the hearing and called witnesses on his behalf. The trial board rendered its decision on November 2, 1994, and found that plaintiff had neglected his duty as field duty inspector when he failed to proceed to the location of the barricaded gunman and assume tactical command. As a penalty, the trial board assessed a three-day suspension and a loss of twenty-four hours of pay and benefits. Plaintiff submitted a request for a veterans preference hearing in a letter dated November 29, 1994, to both defendant McKinnon and Mayor Dennis Archer, wherein he demanded a hearing before the imposition of his suspension.
On November 30, 1994, defendant McKinnon ordered plaintiff's supervisor to impose the three-day suspension. Plaintiff received his veterans preference hearing on July 20, 1995, before Mayor Archer. The process concluded on January 19, 1996. Both sides had legal representation and a full opportunity to present witnesses and evidence. At the conclusion of the January 19, 1996, hearing, Mayor Archer rendered his decision upholding the discipline. The parties stipulated that the period of delay between the plaintiff's request and the commencement of hearings was due solely to scheduling problems on the part of all concerned. Plaintiff made no claim that the city intentionally delayed his veterans preference hearing.
II. Procedural History
In December 1994, Plaintiff filed a complaint against the City of Detroit, as well as Police Chief Isaiah McKinnon and Police Commander David Simmons, in both their individual and official capacities. Plaintiff alleged that he was entitled to a hearing, pursuant to the VPA, before the imposition of his three-day suspension, and that defendants failed to provide him with one. He also alleged that defendants retaliated against him for engaging in union activity. Plaintiff contended that defendants' failure to timely provide him with a hearing, along with their retaliation against him for his union activity, violated his rights to free speech and association, as well as procedural due process, contrary to the federal and state constitutions.
Thereafter, plaintiff moved for partial summary disposition, MCR 2.116(C)(10), arguing that with the exception of damages, no genuine issue of material fact existed and that he was entitled to judgment as a matter of law. Defendants filed a cross-motion for summary disposition, arguing that plaintiff's
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