Holmes v. Haughton Elevator Co. , 404 Mich. 36 ( 1978 )

Kavanagh, C.J.

(to affirm). Defendant employed plaintiff as an elevator mechanic from 1967 until December of 1974, when plaintiff was transferred from the maintenance section to the service section because, according to plaintiff’s complaint, "defendant company wanted to make room for younger men with less seniority”. Defendant admitted the transfer but denied the reason ascribed.

On December 6, 1974, plaintiff was informed that there was no work, and laid off, although the complaint states that he continued to work a few days each month following the layoff.

Plaintiff filed a charge of age discrimination with the Michigan Civil Rights Commission on June 9, 1975, approximately 184 days after the layoff. On March 11, 1976, the commission dismissed the complaint because it was not filed within the 90 days required by § 7(b) of the Michigan State Fair Employment Practices Act (FEPA).¹

Subsequently, on April 9, 1976, plaintiff filed a complaint in Wayne Circuit Court against defendant alleging that age discrimination motivated plaintiff’s transfer and layoff. Claiming that the administrative remedy contained in the FEPA was plaintiff’s exclusive remedy for age discrimination in private employment, defendant-employer filed a motion to quash service of process and for accelerated judgment of dismissal. The trial judge, reasoning that material distinctions in law exist between racial and age discrimination, declined to extend our holding in Pompey v General Motors Corp, 385 Mich 537; 189 NW2d 243 (1971), in which this Court held that a black plaintiff who had not filed a timely complaint with the Michigan Civil Rights Commission was not precluded from maintaining a civil suit against his employer. The trial court entered a judgment of dismissal with prejudice on July 28, 1976. The Court of Appeals reversed, finding that Pompey was equally applicable to age discrimination. 75 Mich App 198; 255 NW2d 6 (1977).²

We affirm. In Pompey, supra, we acknowledged that plaintiff’s complaint to the Civil Rights Commission was properly dismissed as being untimely filed. We noted, however, that plaintiff in his complaint did not assert entitlement to the statutory remedy provided in the FEPA, but rather asserted his right to a cumulative judicial remedy for redress of his civil right to be free from discrimination in private employment. We held that such a cumulative judicial remedy could be maintained in addition to the remedial machinery provided by the statute for vindication of the statutorily created right to be free from discrimination in private employment.

While we recognized that there had been no common-law remedy for race discrimination in private employment and that the absence of such a remedy was ordinarily significant in determining the exclusiveness of the statutory remedy, we nevertheless forged an exception. Looking to prior Michigan case law we found support in civil rights cases for an exception to the general rule that where a new right is created or a duty is imposed by statute, the statutory remedy provided for enforcement is exclusive. In Pompey we continued the exception to that rule. We additionally predicated our decision upon our conviction that the constitutional delegates did not intend, in creating the Civil Rights Commission, to vest it with exclusive jurisdiction over civil rights cases.³

There is nothing in our decision in Pompey which suggests that the holding is to be limited to the securing of one’s civil right to be free from racial discrimination in private employment. The legislation which proscribed such racial discrimination, also proscribed discrimination on the basis of age, sex, color, religion, national origin or ancestry. MCL 423.301 et seq.; MSA 17.458(1) et seq. There is no reason to conclude that the Legislature, in drafting the FEPA, now part of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101), et seq., intended that distinctive treatment be accorded violation of the specific civil right to be free from racial discrimination as opposed to violation of any of the other statutorily protected civil rights. The right to be free from racial discrimination and the right to be free from age discrimination in private employment are both statutory civil rights created by the FEPA and continued in Civil Rights Act.⁴

Pompey does not permit, and we do not perceive, a basis that prompts us to accord age discrimination lesser treatment. Therefore, our decision to extend a cumulative judicial remedy to Pompey for racial discrimination in private employment must likewise be extended to the age discrimination complainant in the instant case.

Accordingly we affirm the Court of Appeals and remand to the circuit court for a hearing on the merits. No costs, a public question involved.

Williams, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred with Kavanagh, C.J.

1 MCLA 423.307(b); MSA 17.458(7)(b).

2 Another panel of the Court of Appeals reached a similar conclusion in Hernden v Consumers Power Co, 72 Mich App 349; 249 NW2d 419 (1976).

3 Pompey v General Motors Corp, 385 Mich 537, 558-559, fn 19; 189 NW2d 243 (1971).

4 Also persuasive in arriving at a determination in the instant matter that an aggrieved party may pursue a cumulative judicial remedy for the violation of any civil right is the fact that the FEPA, reenacted in the Civil Rights Act, MCLA 37.2101 et seq.; MSA 3.548(101) et seq., now expressly provides for direct access to the circuit court. MCLA 37.2801; MSA 3.548(801).