                          STATE OF MICHIGAN

                           COURT OF APPEALS



VAUGHN GUILD,                                                       UNPUBLISHED
                                                                    May 16, 2017
               Plaintiff-Appellant,

v                                                                   No. 332574
                                                                    Court of Claims
MICHIGAN DEPARTMENT OF                                              LC No. 15-000181-MK
CORRECTIONS,

               Defendant-Appellee.


Before: MARKEY, P.J., and MURPHY and METER, JJ.

PER CURIAM.

        Plaintiff Vaughn Guild appeals as of right the court of claims (trial court) order granting
summary disposition in favor of defendant Michigan Department of Corrections (MDOC). The
trial court dismissed plaintiff’s breach of contract action, concluding that it lacked jurisdiction
because plaintiff had failed to exhaust administrative remedies available through and under the
rules and regulations of the Civil Service Commission (CSC). We affirm.

                         I. THE PRIOR LITIGATION AND APPEAL

        In an earlier lawsuit, plaintiff, a psychologist, sued the MDOC for wrongful termination,
alleging a variety of theories. The trial court had partially denied a motion for summary
disposition filed by the MDOC in that case, but this Court reversed and remanded for entry of
judgment in favor of the MDOC. Guild v Dep’t of Corrections, unpublished opinion per curiam
of the Court of Appeals, issued November 25, 2014 (Docket No. 317195). The following
underlying facts were set forth by the previous panel in Guild:

               Plaintiff worked for [the MDOC] for approximately seven years. He was
       one of several psychologists at [the MDOC]’s Muskegon facility. Plaintiff worked
       with groups of approximately 13 sexual offenders and assaultive offenders. One
       of plaintiff’s responsibilities was preparing a “therapy termination report” for
       each inmate in the group within five business days of the completion of the group
       therapy. The database had a security system that locked a report 24 hours after it
       was created. If a psychologist needed to add to a report after it was locked, he had
       to use a process for creating an addendum.



                                                -1-
               In 2008, plaintiff was not completing his reports on time. At his
       deposition, plaintiff contended that the deadlines were unrealistic. At any rate,
       [the MDOC] undertook disciplinary measures to attempt to get plaintiff into
       compliance with the job expectations. At some point, plaintiff’s supervisors
       discovered that plaintiff was beginning or “opening” several reports at once and
       putting in only the “critical data.” The reports would lock, and plaintiff would
       return to complete them later, sometimes weeks later, using the addendum
       process. He used the addendum process to complete the reports and sometimes to
       change his previous ratings in the reports as well. A witness testified that
       plaintiff’s action of leaving incomplete reports in the system gave rise to a risk
       that the parole board would view them and make decisions based on them in an
       incomplete form that plaintiff would later change.

               Plaintiff was terminated on January 21, 2009. Plaintiff filed a grievance
       regarding his termination and an arbitration hearing was held. Eventually, the
       parties reached a settlement and plaintiff was expected to return to work in
       August 2009. However, [the MDOC] then completed an ongoing investigation
       and concluded that plaintiff had been falsifying documents and, after a
       disciplinary hearing on August 28, 2009, it again terminated plaintiff’s
       employment.

               On February 2, 2012, plaintiff filed a four-count complaint alleging
       retaliatory discharge in violation of public policy, retaliatory discharge for the
       assertion of statutory rights, age discrimination1 in violation of the Elliot-Larsen
       Civil Rights Act, MCL 37.2101 et seq., and discrimination on the basis of
       disability in violation of the Persons with Disabilities Civil Rights Act
       (PWDCRA), MCL 37.1201 et seq.2

              [The MDOC] moved for summary disposition. [The MDOC] relied on
       MCR 2.116(C)(4) (lack of subject-matter jurisdiction), MCR 2.116(C)(7)
       (governmental immunity), and MCR 2.116(C)(10) (lack of genuine issue of
       material fact).

              The trial court granted summary disposition with regard to plaintiff’s
       counts I and II. With respect to counts III and IV [discrimination counts], the
       court denied summary disposition . . . .

        This Court proceeded to hold that the MDOC was entitled to summary disposition under
MCR 2.116(C)(10) on the age and disability discrimination counts, and it remanded the case for
entry of judgment in favor of the MDOC. Id. at 4-5. The Michigan Supreme Court subsequently



       1
           Plaintiff was 57 years old in 2008.
       2
           Plaintiff alleged that he had a sleep disorder.



                                                   -2-
denied plaintiff’s application for leave to appeal. Guild v Dep’t of Corrections, 497 Mich 1029
(2015).
                                  II. THE INSTANT LITIGATION

        On August 21, 2015, about nine months after this Court had issued its opinion in the first
appeal, plaintiff filed his complaint for breach of contract in the instant action. The complaint
recited numerous allegations concerning events that occurred during the time period leading up
to the filing of the earlier wrongful termination action. The complaint contained a single count –
breach of labor contract and settlement agreement. Plaintiff alleged that he “was an intended
third party beneficiary” of (1) a collective bargaining agreement (CBA) between UAW Local
6000 and the state of Michigan, which covered the period of January 1, 2008, to December 31,
2010, (2) an MDOC policy directive, number 02.03.100,3 which was made effective April 14,
2008, and (3) an August 20, 2009 settlement agreement negotiated on his behalf by the union.4
Plaintiff further alleged that he had exhausted the grievance procedure outlined in the CBA.
Additionally, plaintiff asserted that “[m]uch critical information relevant to this suit were only
made available to [plaintiff] many years after his termination[, in 2012,] through an unrelated
administrative license investigation that had been instigated by [the] Regional Director of
Psychological Services[.]”5 Plaintiff contended that he and the MDOC were bound by the CBA
and the settlement agreement, that the terms of the settlement agreement provided that plaintiff’s
employment would be reinstated, and that plaintiff had performed his duty under the settlement
agreement by returning to the job site and being prepared to work. Plaintiff also alleged that the
CBA had required the MDOC to “conclude an investigation in a timely manner and that the
employee be apprised within a reasonable time as to the outcome of the investigation.” He
claimed that he had always complied with investigator requests in a timely manner.

        With respect to the 2009 settlement agreement, plaintiff alleged that the MDOC
“substantially breached [its] duty to perform on the contract when he was not returned to work as
the settlement agreement required.” With respect to the CBA, plaintiff alleged that the MDOC
“substantially breached [its] duty to perform under the [CBA] when [the] [w]arden . . . neither
charged [plaintiff] with a rule violation as to ‘falsifying clinical information’ within a reasonable
time nor, alternatively, informed him that the investigation had been concluded and that charges
would not be filed against him.”6 Plaintiff maintained that he suffered damages as a result of the
MDOC’s breach of the CBA and settlement agreement.



3
    Plaintiff characterized the policy directive as an “extension” and part of the CBA.
4
 The 2009 settlement agreement was referenced above in the quoted passage from this Court’s
earlier opinion.
5
    This aspect of the case will be explored more thoroughly below.
6
  Plaintiff stated in the complaint that in late 2008 and early 2009, there had been an MDOC
investigation regarding allegations that plaintiff had falsified clinical information, as well as
another investigation into whether he had falsified time reports. Plaintiff further alleged in the
complaint that the deputy warden had completed the investigation on January 22, 2009, with


                                                  -3-
        The MDOC did not file an answer to the complaint; rather, it filed a motion for summary
disposition under MCR 2.116(C)(4) (“court lacks jurisdiction of the subject matter”). In its
supporting brief, the MDOC initially noted that plaintiff had failed to raise the breach of contract
claim in the prior litigation, either at the trial or appellate stages, nor “did he ever seek to amend
his complaint to address breach of contract or any alleged issues with his union representation,
even after inquiries were made by the trial court about those very issues.” The MDOC
maintained that plaintiff was collaterally estopped from now raising the breach of contract claim
“as a means of obtaining additional review of the exact same facts and issues decided
[previously] in favor of [the MDOC].” However, the main thrust of the MDOC’s argument was
that plaintiff was a member of Michigan’s classified civil service, that he failed to exhaust his
administrative remedies by not processing a claim or grievance to final decision through and
under the rules of the CSC, i.e., an appeal to the CSC of a rejected grievance that had been
pursued after plaintiff was fired the second time, and that, therefore, the trial court lacked
jurisdiction over the case. The MDOC additionally contended that issues concerning discipline
and termination were covered by the CBA and handled by way of the settlement agreement,
which the union entered into on plaintiff’s behalf. Thus, plaintiff was not now entitled to seek
enforcement of the CBA in an attempt to re-litigate the earlier case.

        Plaintiff filed a brief in opposition to the MDOC’s motion for summary disposition. We
shall not, at this juncture, discuss in detail plaintiff’s response, leaving that discussion for the
analysis section of this opinion, but then only to the extent that plaintiff has raised a particular
argument on appeal. In general, plaintiff’s responsive position below was that exceptions to the
doctrine of exhaustion of administrative remedies, including futility, were applicable under the
circumstances of this case. The trial court issued a written opinion, concluding that it lacked
subject-matter jurisdiction over the claim, thereby entitling the MDOC to summary disposition
pursuant to MCR 2.116(C)(4). In reciting the history of the dispute between the parties, the trial
court noted that plaintiff had been terminated on January 21, 2009, that, in response, he filed a
grievance that eventually led to the August 2009 settlement agreement supposedly reinstating
plaintiff, that, soon thereafter, he was again terminated on September 9, 2009, after an
investigation revealed that plaintiff was falsifying clinical information,7 that plaintiff had also

respect to the falsification of clinical information, recommending that plaintiff be given an
opportunity to present further evidence on the issue, but plaintiff had just been terminated (for
the first time) on January 21, 2009, filing his grievance on January 26. According to plaintiff, he
did not become aware of the deputy warden’s investigation report until after August 20, 2009,
around the time of the eventual settlement agreement. Plaintiff additionally alleged that MDOC
officials sought to continue the investigation into the falsification of clinical information,
notwithstanding the completion of the deputy warden’s investigation, so as to be prepared should
plaintiff win reinstatement through his grievance. It is the secretive manner in which the
investigations were conducted, and the timing of actions or inaction related to the investigations,
that formed the basis of plaintiff’s assertion that the MDOC had breached the CBA, including the
policy directive. Plaintiff claimed that the investigation regarding the falsification of time
reports was closed in February 2009 “due to insufficient evidence.”
7
  Plaintiff apparently never actually returned to active employment following the settlement
agreement, with the MDOC moving swiftly to terminate his employment.


                                                 -4-
grieved this second termination, that an arbitrator denied the grievance on July 29, 2010, and that
plaintiff then filed the initial lawsuit against the MDOC on February 2, 2012, which ultimately
failed. The trial court agreed with the MDOC’s exhaustion-of-remedies argument, concluding
that plaintiff had failed to exhaust his administrative remedies by not appealing the July 2010
grievance denial to the CSC, that he had not shown that exhaustion of remedies would have been
futile, that application of the exhaustion doctrine in this case would serve the purpose and policy
behind the doctrine, and that, in light of these findings, the court lacked subject-matter
jurisdiction over the complaint. The trial court did not mention the MDOC’s cursory collateral
estoppel argument. An order granting the MDOC summary disposition under MCR 2.116(C)(4)
was entered on March 2, 2016.

        Plaintiff filed a motion for reconsideration, and the trial court denied the motion,
rejecting plaintiff’s newly-raised argument that he had indeed exhausted his administrative
remedies, where the arbitrator’s decision was final and binding under the CBA, with no CSC
appeal being available. The court ruled that the argument was not consistent with language in
the CBA, which contemplated appeals to the CSC, and the court noted that the argument was
contrary to plaintiff’s earlier position which had implicitly accepted that he had failed to exhaust
an appellate remedy with the CSC. The court also rejected a new argument that plaintiff was
denied due process, which contention was based on the claim that the arbitrator’s decision had
not informed plaintiff of the timelines applicable to an appeal to the CSC. The court found that
the CSC rules and regulations were sufficient to alert plaintiff of any appellate timelines.

                                         III. ANALYSIS

                                A. STANDARDS OF REVIEW

        We review de novo a trial court’s ruling on a motion for summary disposition, Loweke v
Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 162; 809 NW2d 553 (2011), as well as
the question of a court’s subject-matter jurisdiction under MCR 2.116(C)(4), Teddy 23, LLC v
Mich Film Office, 313 Mich App 557, 564; 884 NW2d 799 (2015). We likewise review de novo
the interpretation and legal effect of contractual language, such as that found in the CBA. Rory v
Continental Ins Co, 473 Mich 457, 464; 703 NW2d 23 (2005). This Court reviews for an abuse
of discretion a trial court’s ruling on a motion for reconsideration brought under MCR
2.119(F)(3). Churchman v Rickerson, 240 Mich App 223, 233; 611 NW2d 333 (2000).

               B. SUBJECT-MATTER JURISDICTION AND MCR 2.116(C)(4)

        “Summary disposition pursuant to MCR 2.116(C)(4), for lack of jurisdiction, is proper
when a plaintiff has failed to exhaust its administrative remedies.” Rudolph Steiner Sch of Ann
Arbor v Ann Arbor Charter Twp, 237 Mich App 721, 730; 605 NW2d 18 (1999), citing Blair v
Checker Cab Co, 219 Mich App 667, 671; 558 NW2d 439 (1996); see also Citizens for Common
Sense in Gov’t v Attorney General, 243 Mich App 43, 50; 620 NW2d 546 (2000) (when a
plaintiff fails to exhaust administrative remedies, courts lack jurisdiction). With respect to
subject-matter jurisdiction, this Court in Teddy 23, 313 Mich App at 564, explained:

               Subject-matter jurisdiction concerns a court's abstract power to try a case
       of the kind or character of the one pending and is not dependent on the particular

                                                -5-
       facts of a case. The Michigan Constitution and the Legislature define the class of
       cases over which courts have subject-matter jurisdiction. Subject-matter
       jurisdiction is not subject to waiver because it concerns a court's abstract power to
       try a case. Nor can subject-matter jurisdiction be conferred by the consent of the
       parties. Subject-matter jurisdiction is so critical to a court's authority that a court
       has an independent obligation to take notice when it lacks such jurisdiction, even
       when the parties do not raise the issue. [Citations, quotation marks, and ellipsis
       omitted.]

       In analyzing a motion under MCR 2.116(C)(4), this Court must determine whether the
pleadings, affidavits, depositions, admissions, and documentary evidence demonstrate the
existence, or absence, of subject-matter jurisdiction. L & L Wine & Liquor Corp v Liquor
Control Comm, 274 Mich App 354, 356; 733 NW2d 107 (2007).

                   C. EXHAUSTION OF ADMINISTRATIVE REMEDIES

       “The doctrine of exhaustion of administrative remedies requires that where an
administrative agency provides a remedy, a party must seek such relief before petitioning the
court.” Cummins v Robinson Twp, 283 Mich App 677, 691; 770 NW2d 421 (2009) (citation
omitted). Under the doctrine, courts have declined to act in contravention of administrative
agencies when a remedy available through administrative channels has not been pursued to
completion. Citizens for Common Sense, 243 Mich App at 52. In Int’l Business Machines Corp
v Dep’t of Treasury, 75 Mich App 604, 610; 255 NW2d 702 (1977), this Court observed:

               Exhaustion of administrative remedies serves several policies: (1) an
       untimely resort to the courts may result in delay and disruption of an otherwise
       cohesive administrative scheme; (2) judicial review is best made upon a full
       factual record developed before the agency; (3) resolution of the issues may
       require the accumulated technical competence of the agency or may have been
       entrusted by the Legislature to the agency's discretion; and (4) a successful
       agency settlement of the dispute may render a judicial resolution unnecessary.

              Exhaustion of administrative remedies is not an inflexible condition
       precedent to judicial consideration, however, and will not be required if review of
       the agency's final decision would not provide an adequate remedy, i.e., if it would
       run counter to the policies which underlie the doctrine. [Citations omitted; see
       also L & L Wine, 274 Mich App at 362; Citizens for Common Sense, 243 Mich
       App at 52-53.]

         A judicially created exception to the exhaustion requirement arises when an appeal to the
administrative agency would be futile. L & L Wine, 274 Mich App at 358. To invoke this
exception, it must be clear that an appeal within the agency would be an exercise in futility and
nothing more than a formal step on the way to the courthouse. Id. And we will not presume
futility. Id. Indeed, courts must initially assume that the administrative process will properly
correct alleged errors. Id.




                                                -6-
                                          D. THE CSC

       In Bonneville v Mich Corrections Org, Serv Employees Int’l Union, Local 526M, AFL-
CIO, 190 Mich App 473, 475-476; 476 NW2d 411 (1991), this Court discussed the nature of the
CSC, as well as exhaustion of administrative remedies, stating:

               Plaintiffs, as employees of the Department of Corrections, are members of
       the state classified civil service. As such, the terms and conditions of plaintiffs'
       employment are regulated by the Civil Service Commission, which has plenary
       and absolute authority in that respect, Const 1963, art 11, § 5. The commission
       determines the procedures by which a grievance is reviewed.

                The commission has set up . . . [p]olicy that establishes a system of
       collective bargaining for civil service employees. Under that policy, the union
       chosen as the exclusive bargaining representative has a duty of fair representation.
       . . . In addition, the commission has established an administrative procedure for
       the processing of complaints of unfair labor practice. . . . .

              It is well established that where an administrative grievance procedure is
       provided, exhaustion of that remedy, except where excused, is necessary before
       review by the courts. A court may review nonfinal agency actions only if a final
       agency decision or order would not provide the complainant with an adequate
       remedy. [Citations omitted.][8]

        Keeping in mind the background principles and law discussed above with respect to the
standards of review, MCR 2.116(C)(4), subject-matter jurisdiction, the doctrine of exhaustion of
administrative remedies, and the CSC, we shall now proceed to discuss, analyze, and resolve the
issues and arguments raised on appeal.

                                        E. DISCUSSION

        Plaintiff first contends that the trial court abused its discretion by denying the motion for
reconsideration, given that the CBA operated to expressly replace CSC rules and regulations.
Plaintiff maintains that under the CBA, the July 2010 denial of his grievance was final and


8
 In Womack-Scott v Dep’t of Corrections, 246 Mich App 70, 79; 630 NW2d 650 (2001), this
Court discussed the CSC and challenges to a CSC decision:
               The CSC is an administrative agency that exists pursuant to the
       constitution. The CSC regulates the terms and conditions of employment in the
       classified service and has plenary and absolute authority in that respect. The APA
       [Administrative Procedures Act, MCL 24.201 et seq.,] provides the means to seek
       review of a CSC decision. If a party desires to challenge an adverse CSC decision
       or ruling, the review process involves a direct appeal to the circuit court.
       [Citations omitted.]



                                                -7-
binding and that there was no further available remedy by way of an appeal to or through the
CSC. Plaintiff asserts that a collective bargaining agreement can supplant standard CSC rules
and regulations, including those pertaining to a CSC appeal, and that the CBA did just that in this
case. Thus, according to plaintiff, he had in fact exhausted his administrative remedies by filing
the grievance and obtaining a ruling on the grievance by an arbitrator in July of 2010.

        We initially note that plaintiff first raised this argument in his motion for reconsideration;
therefore, it has not been properly preserved for appellate review. Vushaj v Farm Bureau Gen
Ins Co of Mich, 284 Mich App 513, 519; 773 NW2d 758 (2009). Moreover, we also reject
plaintiff’s argument on a substantive level.

        First, it is not disputed that the CSC rules and regulations generally provide for an appeal
of a grievance decision to adjudicating officers associated with the CSC and then to the CSC
itself. See Civ Serv Rs 8-2 and 8-7. Article 8, § B(6), of the CBA provides, in part, as follows:

              The decision of the Arbitrator will be final and binding on all parties to
       this Agreement, except as may be otherwise provided in the Civil Service Rules
       and Regulations. Arbitration decisions shall not be appealed to the Civil Service
       Commission, except as may be provided by the Civil Service Rules and
       Regulations. . . . .

         The trial court relied on this CBA provision in denying plaintiff’s motion for
reconsideration, finding that a CSC appeal of the July 2010 grievance ruling had been available
to plaintiff under CBA, art 8, § B(6), when considered in conjunction with the CSC rules and
regulations providing for such appeals. This is a sound construction of the CBA provision.
Plaintiff argues, however, that the trial court failed to consider CBA, art 8, § E, which provides
in full:

              The grievance procedure set out above shall be exclusive and shall replace
       any other grievance procedure for adjustment of any disputes permitted under
       Civil Service Rules and Regulations. The grievance procedure set out above shall
       not be used for the adjustment of any dispute for which the Civil Service Rules
       and Regulations require the exclusive use of a Civil Service forum or procedure.
       [Emphasis added.]

        Assuming for the sake of argument the validity of plaintiff’s proposition that a collective
bargaining agreement can eliminate the right to or opportunity of a CSC appeal, CBA, art 8, § E,
absolutely does not accomplish such a feat. Article 8, § B(6), is part of the “grievance procedure
set out above,” as referenced in art 8, § E. Accordingly, CBA, art 8, § E, simply reinforces CBA,
art 8, § B(6), which, as indicated above, plainly contemplates a CSC appeal under CSC rule and
regulations. Contrary to plaintiff’s position, CBA, art 8, § E, does not eliminate CSC appeals,
and such an interpretation would render § B(6) nugatory and meaningless. Plaintiff mistakenly
construes § E as essentially rendering all CSC rules and regulations completely inapplicable,
with the CBA controlling in all aspects of a grievance dispute. Section E, once again, merely
reinforces the validity of § B(6), which provides for a CSC appeal as allowed under CSC rule
and regulations. Plaintiff’s alternative argument that, minimally, an ambiguity exists as to the
interplay between §§ B(6) and E and that the ambiguity should be resolved in his favor and

                                                 -8-
against the MDOC is likewise rejected; there is no ambiguity. Reversal in regard to this issue is
wholly unwarranted.

       In an accompanying argument based on CBA, art 8, § E, plaintiff, in cursory fashion,
next appears to contend that due process is offended by applying the exhaustion doctrine,
considering that the CBA was ambiguous concerning the need or ability to file a CSC appeal,
leaving plaintiff without adequate notice that he had to exhaust his administrative remedies
through a CSC appeal. Again, the CBA very clearly contemplates and allows for a CSC appeal
from a grievance decision; therefore, plaintiff had adequate notice for due process purposes. See
Jones v Flowers, 547 US 220, 234; 126 S Ct 1708; 164 L Ed 2d 415 (2006) (“due process
requires the government to provide adequate notice”).

        Next, plaintiff argues that, accepting that he had not exhausted his administrative
remedies, none of the policy reasons for imposing the exhaustion requirement were implicated in
this case and thus exhaustion should not have been mandated. Plaintiff also argues that pursuing
a CSC appeal would have been futile, considering the extent of the alleged contractual breach
that amounted to repudiation of the settlement agreement, and given that the absence of certain e-
mails, not discovered until 2012, would have resulted in an improper and inaccurate framing of
the parties’ contractual relationship, such that review by the CSC in 2010 would not have yielded
an adequate remedy.

        Plaintiff maintains that in 2012 his prior counsel unearthed critical information through a
discovery request in an administrative license investigation instituted by an MDOC director of
psychological services. The information was contained in a series of e-mails between various
MDOC officials concerning plaintiff’s employment. In an e-mail sent shortly before the August
2009 settlement was reached on plaintiff’s pending grievance following his initial termination in
January 2009, an MDOC official indicated that a settlement offer was going to be made because
plaintiff had stronger evidence and there was an “employee liberal arbitrator[.]” The e-mail
further indicated that if plaintiff accepted the settlement offer, the following should occur:

               [W]e are to proceed promptly with the pending investigation that will have
       the charges we determine that will at least include falsification of records which
       they are still indicating is a dismissable offense. They want us to charge him and
       notify him regarding the scheduled discipline conference. They are indicating that
       that will also include suspending him with a stop work order per the policy so he
       won’t actually be returning to work. We need to be prepared to move fast after
       they contact us on the 19th [day before settlement agreement was executed].

        This e-mail and similar ones are characterized by plaintiff as showing collusion between
MDOC officials, revealing a concerted effort to undermine the 2009 settlement agreement and
reflecting the MDOC’s intent or plan not to actually allow plaintiff to return to work under the
settlement, despite language in the settlement contemplating plaintiff’s return, but to instead
finalize an apparently ongoing investigation that would provide a basis to once again terminate
plaintiff’s employment. Plaintiff argues that because he only discovered the e-mails in 2012,
which was well past the period to file a CSC appeal from the denial of his second grievance in
July 2010, he should be excused for not having exhausted his administrative remedies, i.e., for
not having pursued a CSC appeal of the grievance denial, given that the policy considerations

                                                -9-
behind the exhaustion requirement were not implicated under the circumstances. Plaintiff
indicates that the true dimensions of what actually transpired in 2009, relative to a cause of
action for breach of contract, could not be appreciated absent consideration of the e-mails
discovered years later, thereby making any CSC appeal futile at the time.

        We fail to understand the logic of plaintiff’s argument in the context of the exhaustion
doctrine. Although plaintiff may not have known about the e-mails and alleged collusion until
2012, he certainly knew in 2009 that the settlement agreement was not fully carried out, as he
never did return to work, and that the MDOC had terminated him on the basis of an investigation
that showed the falsification of clinical records.9 The absence of the information contained in the
e-mails did not provide a roadblock to a potentially successful CSC appeal, nor excuse an effort
to pursue a CSC appeal in the first instance. And as aptly noted by the trial court, had plaintiff
pursued a CSC appeal, he may very well have discovered the e-mail information at that time.
Further, the motivations, intent, and maneuvers of MDOC officials, as reflected in the e-mails
and even if deemed troubling, ultimately had no real bearing on whether plaintiff was properly
terminated for falsifying clinical information; the relevant issue was whether he did so or not. A
CSC appeal by plaintiff would not have run counter to the policies underlying the exhaustion
doctrine, see Int’l Business Machines, 75 Mich App at 610, and an adequate remedy was
available to plaintiff through a CSC appeal. Moreover, under the circumstances, we cannot find
that a CSC appeal would have been futile or nothing more than a formal step to the courthouse,
especially given the assumption that the administrative process would have corrected any alleged
errors. L & L Wine, 274 Mich App at 358.

        On a final note, we cannot help but remark that, assuming plaintiff could file an original
action for breach of contract in the court of claims,10 res judicata would clearly bar such a lawsuit
against the MDOC. “The purposes of res judicata are to relieve parties of the cost and vexation


9
  As mentioned earlier in this opinion, the breach of contract action concerned plaintiff’s claim
that the settlement agreement was breached by the MDOC’s failure to return him to his job and
that the CBA was breached by the manner in which the MDOC conducted its investigations of
plaintiff.
10
   Typically, an appeal of an employment decision on a grievance is pursued through the CSC,
followed by an appeal to the circuit court, not an original action. The panel in Womack-Scott,
246 Mich App at 80, explained:
               Considering the function that the CSC serves to resolve employment
       disputes of state employees and the availability of a direct appeal to the circuit
       court from a CSC decision, we hold that a party aggrieved by a ruling of the CSC
       cannot file an independent action to seek redress of the claims made during the
       administrative process, but rather must pursue those claims through a direct
       appeal to the circuit court pursuant to the APA. See MCR 7.104(C).

Plaintiff’s lawsuit essentially not only circumvents the CSC appeals process, it undermines the
procedural mechanism to bring a dispute in front of a trial or circuit court, i.e., an appeal.


                                                -10-
of multiple lawsuits, conserve judicial resources, and encourage reliance on adjudication.”
Richards v Tibaldi, 272 Mich App 522, 530-531; 726 NW2d 770 (2006) (citation omitted). “In
general, res judicata bars a subsequent action . . . when the facts or evidence essential to the
action is identical to that essential to a prior action.” Id. at 530 (citation omitted).
“Res judicata requires that (1) the prior action was decided on the merits, (2) the decree in the
prior action was a final decision, (3) the matter contested in the second case was or could have
been resolved in the first, and (4) both actions involved the same parties or their privies.” Id. at
531 (emphasis added). The alleged breach of the CBA and settlement agreement occurred
before the first lawsuit was even filed and could and should have been pursued and resolved at
that time. And even if we assume that a breach of contract action was not discoverable until
2012, considering the e-mails, the earlier litigation was ongoing in 2012. Reversal is
unwarranted.

     Affirmed. Having fully prevailed on appeal, the MDOC is awarded taxable costs under
MCR 7.219.



                                                             /s/ Jane E. Markey
                                                             /s/ William B. Murphy
                                                             /s/ Patrick M. Meter




                                               -11-
