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### STATE OF MICHIGAN

COURT OF APPEALS

VAUGHN GUILD,

Plaintiff-Appellant, UNPUBLISHED May 16, 2017

v No. 332574
Court of Claims

MICHIGAN DEPARTMENT OF CORRECTIONS, LC No. 15-000181-MK

Defendant-Appellee.

Before: M ARKEY , P.J., and M URPHY and M ETER , JJ.

P ER C URIAM

.

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

I. THE PRIOR LITIGATION AND APPEAL

In an earlier lawsuit, plaintiff, a psychologist, sued the MDO C for wrongful termination, alleging a variety of theories. T he trial court had partially denied a motion for summary disposition filed by the MDOC in that case, but this Court reve rsed 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 Guild v Dep’t of Corrections , unpublished opinion per curiam of the Court of Appeals, issued November 25, 2014 (Docket No. 3 17195). The following underlying facts were set for th 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 termin ation report” for each inmate in the group within five business days of the compl etion of the group therapy. The database had a security system that locked a repor t 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.-2- In 2008, plaintiff was not comple ting his reports on time. At his deposition, plaintiff contended that the deadlines were unreali stic. At any rate, [the MDOC] undertook disciplinary measures to attempt to get pl aintiff into compliance with the job expectations. At some point, plaintiff’ s supervisors discovered that plaintiff was begi nning or “opening” several re ports at once and putting in only the “critical data.” The reports would lock, an d plaintiff would return to complete them later, sometimes weeks later, using the addendum process. He used the addendum process to complete the reports a nd sometimes to change his previous ratings in the reports as well. A witness t estified that plaintiff’s action of leaving inco mplete reports in the system gave rise to a risk that the parole board would view t hem and make decisions based on them in an incomplete form that plai ntiff would later change.

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

On February 2, 2012, plaintiff fi led a four-count complaint al leging retaliatory discharge in violation of public policy, retaliator y discharge for the assertion of statutory rights, age discrimination 1 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 P ersons 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-m atter jurisdiction), MCR 2.11 6(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 pla intiff’s counts I and II. With respect to counts III and IV [discriminat ion counts], the court denied summary disposition . . . .

This Court proceeded to hold that the MDOC was entitled to sum mary disposition under MCR 2.116(C)(10) on the age and disability discrimination count s, and it remanded the case for entry of judgment in f avor of the MDOC. Id. at 4-5. The Michigan Supr eme Court subsequently

1 Plaintiff was 57 years old in 2008.

2 Plaintiff alleged that he had a sleep disorder.-3- 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 iss ued its opinion in the first appeal, plaintiff filed his complaint for breach of contract in the instant action. The complaint recited numerous allegations conc erning 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 settle ment agreement. Plaintiff a lleged that he “was an intended third party beneficiary” of (1) a collective bargaining agreeme nt (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 negotiate d on his behalf by the union. 4 Plaintiff further alleged that h e had exhausted the grievance p rocedure outlined in the CBA. Additionally, plaintiff asserted that “[m]uch critical informat ion 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 b y [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 performe d his duty under the settlement agreement by returning to the job site and being prepared to wo rk. Plaintiff also alleged that the CBA had required the MDOC to “conclude an investigation in a ti mely manner and that the employee be apprised within a reasonable time as to the outcome of the investigation.” He claimed that he had always comp lied with investigator requests in a timely manner.

With respect to the 2009 settle ment agreement, plaintiff alleg ed that the MDOC “substantially breached [its] dut y to perform on the contract w hen he was not returned to work as the settlement agreement required.” With respect to the CBA, p laintiff alleged that the MDOC “substantially breached [its] duty to perform under the [CBA] w hen [the] [w]arden . . . neither charged [plaintiff] with a rule violation as to ‘falsifying cli nical information’ within a reasonable time nor, alternatively, informed him that the investigation ha d 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 po licy directive as an “extension” and part of the CBA.

4 The 2009 settlement agreement was referenced above in the quot ed 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 allegati ons that plaintiff had falsifie d clinical information, as well as another investigation into whether he had falsified time report s. Plaintiff further alleged in the complaint that the deputy warden had completed the investigatio n on January 22, 2009, with-4- The MDOC did not file an answer to the complaint; rather, it f iled 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 f ailed 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 issu es with his union representation, even after inquiries were made by the trial court about those v ery issues.” The MDOC maintained that plaintiff was collaterally estopped from now ra ising the breach of contract claim “as a means of obtaining additional review of the exact same fa cts and issues decided [previously] in favor of [the MDOC].” However, the main thrustof the MDOC’s argument was that plaintiff was a member of Michigan’s classified civil serv ice, that he failed to exhaust his administrative remedies by not p rocessing a claim or grievance to final decision through and under the rules of the CSC, i.e., an appeal to the CSC of a rej ected grievance that had been pursued after plaintiff was fired the second time, and that, th erefore, the trial court lacked jurisdiction over the case. The MDOC additionally contended th at issues concerning discipline and termination were covered bythe CBA and handled by way of t he settlement agreement, which the union entered into on plaintiff’s behalf. Thus, plai ntiff was not now entitled to seek
enforcement of the CBA in an att empt 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 resp onse, leaving that discussion for the analysis section of this opinion, but then only to the extent t hat plaintiff has raised a particular argument on appeal. In general, plaintiff’s responsive positio n 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 o pinion, 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 di spute between the parties, the trial court noted that plaintiff had been terminated on January 21, 2 009, that, in response, he filed a grievance that eventually led to the August 2009 settlement agr eement supposedly reinstating plaintiff, that, soon thereafter, he was again terminated on Se ptember 9, 2009, after an investigation revealed that plaintiff was falsifying clinical i nformation, 7 that plaintiff had also

respect to the falsification of clinical information, recommend ing that plaintiff be given an opportunity to present further evidence on the issue, but plain tiff had just been terminated (for the first time) on January 21, 2009, filing his grievance on Ja nuary 26. According to plaintiff, he
did not become aware of the de puty warden’s investigation repor t until after August 20, 2009,
around the time of the eventual s ettlement agreement. Plaintif f additionally alleged that MDOC officials sought to continue the investigation into the falsifi cation of clinical information, notwithstanding the completion of the deputy warden’s investiga tion, so as to be prepared should plaintiff win reinstatement thr ough his grievance. It is the s ecretive manner in which the investigations were conducted, an d the timing of actions or ina ction related to the investigations, that formed the basis of plainti ff’s assertion that the MDOC ha d breached the CBA, including the policy directive. Plaintiff claimed that the investigation reg arding the falsification of time reports was closed in February 2009 “due to insufficient eviden ce.”

7 Plaintiff apparently never actually returned to active employm ent following the settlement agreement, with the MDOC moving swiftly to terminate his employ ment.-5- 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 Fe bruary 2, 2012, which ultimately failed. The trial court agreed w ith the MDOC’s exhaustion-of-r emedies argument, concluding that plaintiff had failed to exhaust his administrative remedie s by not appealing the July 2010 grievance denial to the CSC, that he had not shown that exhaust ion of remedies would have been futile, that application of the exhaustion doctrine in this cas e 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 menti on the MDOC’s cursory collateral estoppel argument. An order gr anting the MDOC summary disposit ion under MCR 2.116(C)(4) was entered on March 2, 2016.

Plaintiff filed a motion for reconsideration, and the trial co urt denied the motion, rejecting plaintiff’s newly-rais ed 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 n oted that the argument was contrary to plaintiff’s earlier position which had implicitly a ccepted that he had failed to exhaust an appellate remedy with the CSC. The court also rejected a ne w argument that plaintiff was denied due process, which contention was based on the claim tha t the arbitrator’s decision had not informed plaintiff of the tim elines applicable to an appeal to the CSC. The court found that the CSC rules and regulations w ere sufficient to alert plaintif f of any appellate timelines.

III. ANALYSIS

A. STANDARDS OF REVIEW

We review de novo a trial court’s ruling on a motion for summa ry 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 revi ew de novo the interpretation and legal e ffect of contractual language, su ch 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 ru ling on a motion for reconsider ation brought under MCR 2.119(F)(3). Churchman v Rickerson , 240 Mich App 223, 233; 611 NW2d 333 (2000).

B. SUBJECT-MATTER JURISD ICTION 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 remed ies.” 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 jurisdic tion, this Court in Teddy 23 , 313 Mich App at 564, explained:

Subject-matter jurisdiction con cerns a court's abstract power to try a case of the kind or character of the one pending and is not dependen t on the particular-6- facts of a case. The Michigan C onstitution and the Legislature define the class of cases over which courts have subject-matter jurisdiction. Subje ct-matter jurisdiction is not subject to waiver because it concerns a cou rt'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 t o 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 d etermine 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 ADMIN ISTRATIVE REMEDIES

“The doctrine of exhaustion of administrative remedies require s that where an administrative agency provides a remedy, a party must seek suchrelief 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 contraventio n of administrative agencies when a remedy available through administrative channel s 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 observe d:

Exhaustion of administrative remedies serves several policies: (1) an untimely resort to the courts may result in delay and disruptio n of an otherwise cohesive administrative scheme; (2) judicial review is best mad e upon a full factual record developed before the agency; (3) resolution of t he issues may require the accumulated technical competence of the agency or m ay have been entrusted by the Legislature to the agency's discretion; and (4 ) a successful agency settlement of the dispute may render a judicial resoluti on unnecessary.

Exhaustion of administrative remedies is not an inflexible con dition precedent to judicial consideration, however, and will not be r equired if review of the agency's final decision woul d not provide an adequate remed y, i.e., if it would run counter to the policies whic h underlie the doctrine. [Cita tions 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 a rises 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 wo uld 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 pr ocess will properly correct alleged errors. Id.-7- D. THE CSC

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

Plaintiffs, as employees of the Department of Corrections, are members of the state classified civil service. As such, the terms and cond itions 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 sy stem of collective bargaining for civil service employees. Under that p olicy, the union chosen as the exclusive bargaini ng representative has a duty of fair representation. . . . In addition, the commission has established an administra tive 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 n ecessary before review by the courts. A court may review nonfinal agency action s only if a final agency decision or order would not provide the complainant withan adequate remedy. [Citations omitted.][ 8 ]

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

E. DISCUSSION

Plaintiff first contends that the trial court abused its discr etion by denying the motion for reconsideration, given that the CBA operated to expressly repla ce 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 cha llenges to a CSC decision:

The CSC is an administrative agency that exists pursuant to th e constitution. The CSC regulates the terms and conditions of emp loyment in the classified service and has plenar y and absolute authority in th at 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 ad verse CSC decision or ruling, the review process involves a direct appeal to the c ircuit court. [Citations omitted.]-8- binding and that there was no further available remedy by way o f 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, an d that the CBA did just that in this case. Thus, according to plaintiff, he had in fact exhausted h is administrative remedies by filing the grievance and obtaining a r uling on the grievance by an arb itrator in July of 2010.

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

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

The decision of the Arbitrator will be final and binding on al l parties to this Agreement, except as may be otherwise provided in the Civi l Service Rules and Regulations. Arbitration de cisions shall not be appealed to the Civil Service Commission, except as may be provided by the Civil Service Rule s and Regulations. . . . .

The trial court relied on this CBA provision in denying plaint iff’s motion for reconsideration, finding that a CSC appeal of the July 2010 gri evance ruling had been available to plaintiff under CBA, art 8, § B(6), when considered in conju nction with the CSC rules and regulations providing for such appeals. This is a sound constr uction of the CBA provision. Plaintiff argues, however, that t he trial court failed to consi der 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 pe rmitted under Civil Service Rules and Regulations. The grievance procedure se t out above shall not be used for the adjustment of any dispute for which the Civ il Service Rules and Regulations require the exclu sive use of a Civil Service fo rum or procedure. [Emphasis added.]

Assuming for the sake of argume nt 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 i n 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 plain tiff’s position, CBA, art 8, § E , does not eliminate CSC appeals, and such an interpretation would render § B(6) nugatory and mea ningless. Plaintiff mistakenly construes § E as essentially rendering all CSC rules and regula tions 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 app eal as allowed under CSC rule and regulations. Plaintiff’s alternative argument that, minima lly, an ambiguity exists as to the interplay between §§ B(6) and E and that the ambiguity should b e resolved in his favor and-9- 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, plaintif f, in cursory fashion, next appears to contend that due process is offended by applyin g the exhaustion doctrine, considering that the CBA was ambiguous concerning the need or a bility to file a CSC appeal, leaving plaintiff without adequa te notice that he had to exhaus t 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 no tice 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 exhaust ed his administrative remedies, none of the policy reasons for imposing the exhaustio n requirement were implicated in
this case and thus exhaustion should not have been mandated. P laintiff 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 g iven that the absence of certain emails, not discovered until 2012, would have resulted in an imp roper and inaccurate framing of the parties’ contractual relati onship, such that review by the CSC in 2010 would not have yielded an adequate remedy.

Plaintiff maintains that in 2012 his prior counsel unearthed c ritical information through a discovery request in an adminis trative license investigation in stituted by an MDOC director of psychological services. The information was contained in a ser ies of e-mails between various MDOC officials concerning plaintif f’s employment. In an e-mail sent shortly before the August 2009 settlement was reached on plaintiff’s pending grievance fo llowing his initial termination in January 2009, an MDOC official indicated that a settlement offe r was going to be made because plaintiff had stronger evidence and there was an “employee libe ral arbitrator[.]” The e-mail further indicated that if plaintiff accepted the settlement off er, the following should occur:

[W]e are to proceed promptly wit h the pending investigation th at will have the charges we determine that will at least include falsificati on of records which they are still indicating is a d ismissable offense. They want u s 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 pe r 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 be fore settlement agreement wa s executed].

This e-mail and similar ones are characterized by plaintiff as showing collusion between MDOC officials, revealing a concerted effort to undermine the 2 009 settlement agreement and reflecting the MDOC’s intent or plan not to actually allow plai ntiff to return to work under the settlement, despite language in the settlement contemplating pl aintiff’s return, but to instead finalize an apparently ongoing investigation that would provide a basis to once again terminate plaintiff’s employment. Plain tiff argues that because he only discovered the e-mails in 2012, which was well past the period to file a CSC appeal from the de nial of his second grievance in July 2010, he should be excused for not having exhausted his ad ministrative remedies, i.e., for not having pursued a CSC appeal of the grievance denial, given that the policy considerations-10- 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 m aking 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-ma ils and alleged collusion until 2012, he certainly knew in 2009 tha t the settlement agreement w as not fully carried out, as he never did return to work, and th at the MDOC had terminated him on the basis of an investigation
that showed the falsifi cation of clinical records. 9 The absence of the inf ormation 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 not ed by the trial court, had plaintiff pursued a CSC appeal, he may very well have discovered the e-ma il information at that time. Further, the motivations, intent, and maneuvers of MDOC officia ls, 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 is sue was whether he did so or not. A CSC appeal by plaintiff would not have run counter to the polic ies 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 t he 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 plai ntiff could file an original action for breach of contract in the court of claims, 10 res judicata would clear ly 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 a ction concerned plaintiff’s claim that the settlement agreement was breached by the MDOC’s failur e to return him to his job and that the CBA was breached by the manner in which the MDOC condu cted 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 circ uit court, not an original act ion. The panel in Womack-Scott

, 246 Mich App at 80, explained:

Considering the function that the CSC serves to resolve employ ment disputes of state employees and the availability of a direct ap peal 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 thr ough a direct appeal to the circuit court pur suant to the APA. See MCR 7.104( C).

Plaintiff’s lawsuit essentially not only circumvents the CSC ap peals process, it undermines the procedural mechanism to bring a d ispute in front of a trial or circuit court, i.e., an appeal.-11- of multiple lawsuits, conserve judicial resources, and encourag e reliance on adjudication.”

Richards v Tibaldi , 272 Mich App 522, 530-531; 726 NW2d 770 (2006) (citation omit ted). “In general, res judicata bars a subs equent action . . . when the f acts 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) t he prior action was decided on the merits, (2) the decree in the prior action was a final decisi on, (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 settle ment agreement occurred
before the first lawsuit was even filed and could and should ha ve been pursued and resolved at
that time. And even if we assume that a breach of contract act ion was not discoverable until 2012, considering the e-mails, th e earlier litigation was ongoi ng in 2012. Reversal is
unwarranted.

Affirmed. Having fully prevailed on appeal, the MDOC is award ed taxable costs under

MCR 7.219.

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