Hernden v. Consumers Power Co.
249 N.W.2d 419
Mich. Ct. App.
1976
Check Treatment

HERNDEN v CONSUMERS POWER COMPANY

Docket No. 25001

72 MICH APP 349

Decided November 22, 1976

72 Mich App 349

OPINION OF THE COURT

1. LIMITATION OF ACTIONS—MICHIGAN STATE FAIR EMPLOYMENT PRACTICES ACT—DISCRIMINATION IN EMPLOYMENT—CIVIL RIGHTS COMMISSION—JUDICIAL REMEDY—AGE DISCRIMINATION—STATUTES.

Thе 90-day statute of limitations provided in the Michigan State Fair Employment Practices Act applies only to the time limit for filing a complaint alleging discrimination in employment with the Michigan Civil Rights Commission, a statutory remedy, and does not apply to a plaintiff‘s cumulative and independent judicial remedy for redress of his right to be free from age discrimination in private employment (MCLA 423.307(b); MSA 17.458(7)(b)).

2. CIVIL RIGHTS—DAMAGES—STATUTORY RIGHT—DISCRIMINATION—PRIVATE EMPLOYMENT.

A civil damage action may be brought to redress violations of the right created by statute to be free from discrimination in private employment.

3. LIMITATION OF ACTIONS—DISCRIMINATION IN EMPLOYMENT—AGE DISCRIMINATION—CIVIL DAMAGE ACTIONS—MICHIGAN STATE FAIR EMPLOYMENT PRACTICES ACT—STATUTES.

A civil damage action for alleged age discrimination in employment is not barred by the 90-day limitation period contained in the Michigan State Fair Employment Practices Act (MCLA 423.307(b); MSA 17.458(7)(b)).

4. MASTER AND SERVANT—CONTRACTS—EMPLOYMENT—INDEFINITE PERIOD—BREACH OF CONTRACT—TERMINATION—ARBITRARY AND CAPRICIOUS DISCHARGE.

An employment contract of indefinite ‍‌​​​‌‌‌​‌​​​​​​​‌‌‌​‌​​‌​​​‌​​‌​​​​​‌​‌‌​‌​​​​‌‌‍hire is not breached where an employee is arbitrarily and capriciously discharged by his employer, because such contracts are terminаble at the will of either party with or without cause.

5. LIBEL AND SLANDER—CAUSE OF ACTION—PUBLICATION.

A complaint fails to state a cause of action for libel where it does not state where, when, or to whom the alleged libelous statement was published, or that therе was a publication to anyone other than the plaintiff himself.

CONCURRENCE BY D. E. HOLBROOK, JR., J.

6. MASTER AND SERVANT—CONTRACTS—EMPLOYMENT—INDEFINITE PERIOD—TERMINATION—DISTINGUISHING FEATURES—PROMISES—CONSIDERATIONS.

Contracts for personal services for permanent employment or for life are considered indefinite hirings, terminable at the will of either party, unless thеre are distinguishing features, or promises, or a consideration in addition to the services to be rendered.

Appeal from Macomb, Edward J. Gallagher, J. Submitted May 4, 1976, at Detroit. (Docket No. 25001.) Decided November 22, 1976.

Complaint by Mervin W. Hernden against Consumers Power Company for wrongful discharge from employment and libel. Accelerated judgment for defendant on two counts and summary judgment for the defendant on the remaining counts. Plaintiff appeals. Affirmed in рart and reversed in part.

De Lisle & Harper, P. C., for plaintiff.

Dykema, Gossett, Spencer, Goodnow & Trigg (by Marilyn Jean Kelly), for defendant.

Before: BRONSON, P. J., and D. E. HOLBROOK, JR., and D. F. WALSH, JJ.

BRONSON, P. J. Plaintiff, Mervin W. Hernden, claims that after some 28 years of employment with defendant, Consumers Power Company, he was discharged by defendant on June 21, 1974. He claims that ‍‌​​​‌‌‌​‌​​​​​​​‌‌‌​‌​​‌​​​‌​​‌​​​​​‌​‌‌​‌​​​​‌‌‍defendant‘s action was arbitrary and capricious and at least in part based on plaintiff‘s age of 51 years at the time of the alleged discharge.

Plaintiff commenced this action on February 25, 1975. Counts 1 and 2 of his complaint alleged that his discharge violated the Michigan State Fair Employment Practices Act, MCLA 423.301 et seq.; MSA 17.458(1) et seq., prohibiting discrimination on the basis of age in private employment. Count 4 of the complaint alleged that plaintiff‘s wrongful discharge constituted a breach of an employment contract between plaintiff and defendant. Count 6 charged defendant with libeling plaintiff. Several other counts were included in plaintiff‘s complaint but are no longer at issue in this case.

On March 21, 1975, defendant filed a motion requesting accelerated judgment pursuant to GCR 1963, 116.1(5) on Counts 1 and 2 of plaintiff‘s complaint. Defendant asserted that these two counts were barred by the 90-day statute of limitations contained in the Michigan State Fair Employment Practices Act, MCLA 423.307(b); MSA 17.458(7)(b).

Defendant‘s motion further requested summary judgment on the remaining counts of plaintiff‘s complaint on the basis that none of the remaining counts stated a claim upon which relief could be granted. GCR 1963, 117.2(1). As to Count 4, defendant asserted that the contract referred to in plaintiff‘s complaint, a collective bargaining agreement, had long since expired. Defendant claimed alternatively that the allegations in Count 4 were insufficient to state a cause of action for breach of a collective bargaining agreement because plaintiff had failed to allege exhaustion of contractual provisions for redress оf grievances and arbitration.

Count 6 was claimed to be insufficient because of plaintiff‘s failure to allege with specificity the alleged libelous statements, their publication, or that they were made by an agent of dеfendant while in the discharge of his duties as agent.

Plaintiff subsequently filed an amended complaint as to Count 6 on April 29, 1975.

On June 13, 1975, the trial judge adopted defendant‘s brief as its opinion and on June 30, 1975, entered an order granting defendant‘s motiоn for accelerated judgment as to Counts 1 and 2, and summary judgment as to the remainder of the counts in plaintiff‘s complaint, and dismissing plaintiff‘s action. ‍‌​​​‌‌‌​‌​​​​​​​‌‌‌​‌​​‌​​​‌​​‌​​​​​‌​‌‌​‌​​​​‌‌‍Plaintiff‘s subsequent motions for relief from this order and for leave to file an amended complaint were denied on July 23, 1975. Plaintiff now appeals and challenges the trial court‘s order granting defendant accelerated judgment and summary judgment as to Counts 1, 2, 4, and 6 of his complaint.

I.

Plaintiff first claims that the trial court еrred in applying the 90-day statute of limitations to the counts of his complaint alleging age discrimination in employment. We agree. The 90-day statutory limit by its terms applies only to the time limit for filing a complaint alleging discrimination in employment with the Michigan Civil Rights Commission. It applies only to the statutory remedy provided by the Michigan State Fair Employment Practices Act and not to plaintiff‘s cumulative and independent judicial remedy for redress of his right to freedom from age discrimination in private employment.

Our holding is mandated by the Supreme Court decision in

. It was in that case that the Supreme Court recognized the existence of a civil damage action to redress violations of statutorily created rights to be freе from discrimination in private employment. We think that decision also held that the 90-day limitation period applicable to the statutory remedy created by the Michigan State Fair Employment Practices Act had no application to the newly recognized judicial remedy.

In

, the plaintiff, who was black, filed a complaint in circuit court charging his employer with racial discrimination. Plaintiff claimed that his employer suspended him from employment and demoted him for reasons which would not have resulted in similar actions against white employees. Such racially motivated actions, if proven, would have constituted a violation of the Michigan State Fair Employment Practices Act.

The defendant employer asserted at the trial court level and again on appeal that since the plaintiff alleged violations of that act, he should be bound by the 90-day statute of limitаtions contained in the act.

. The trial court, however, granted the defendant accelerated judgment on plaintiff‘s discrimination count for reasons not entirely clear on the record and the Court of Appeals affirmed this disposition of the discrimination count without discussion of its reasons.
, footnotes 4, 5,
.

On appeal to the Supreme Court, defendant General Motors again contended that plaintiff‘s action on his claim of racial discrimination in employment was barred because his suit was instituted more than 90 days after the alleged act of discrimination. The Supreme Court addressed this contention as follows:

Defendant contends that since Count I of plaintiff‘s complaint alleges that the action which the emplоyer took on May 28, 1964, constitutes a violation of the Michigan State Fair Employment Practices Act, plaintiff is bound by the statute of limitations embodied in that act which expressly provides that complaints of violations of the act must be filed within 90 days after the, alleged act of discrimination. In support of that contention, defendant notes the general rule of law that one who sues to ‍‌​​​‌‌‌​‌​​​​​​​‌‌‌​‌​​‌​​​‌​​‌​​​​​‌​‌‌​‌​​​​‌‌‍enforce a statutory right is restricted by the statutory limitation of time within which suit must be brought. We re-affirm our adherence to this rule and are therefore constrained to agree with defendant that plaintiff‘s statutory remedy is barred since the applicable limitational period has run. But it is transparently clear that plaintiff in Count I is asserting a cumulative judicial remedy for redress of his civil right to freedom from discrimination in private employment, rather than any statutory remedy.

. (Footnotes omitted.)

Defendant‘s argument on this appeal, that the Court in

did not decide the question of whether the 90-day limitation period applied to the plaintiff‘s cumulative judicial remedy as well as to the statutory remedy, must be rejected. That the civil action asserted by the plaintiff in
was not barred by the statutory limitation period is the only conclusion which can be drawn from the language quoted above. The holding could hardly have been more clear if spelled out word-by-word. Moreover, unless this was the holding of the Supreme Court, their conclusion would necessarily havе been that the plaintiff‘s asserted judicial remedy, as well as his statutory remedy, was barred. Instead, the Court went on to discuss whether the judicial remedy asserted would be recognized. The cause of action was recognized and the decisions of the trial court and the Court of Appeals were reversed.

Decisions since

, although not dealing directly with the issue presented here, have stressed the independence in scope, purpose and sourсe of statutory, civil and contractual remedies for alleged discrimination in private employment. See, e.g.,
,
,
,
. Moreover, the recent decision in
, reaches a conclusion which necessarily assumes the holding we make explicit here.

We hold that рlaintiff‘s civil damage action for alleged age discrimination in employment is not barred by the 90-day limitation period contained in the Michigan State Fair Employment Practices Act. The trial court‘s dismissal of Counts 1 and 2 of plaintiff‘s complaint must therefore be reversed.

II.

Count 4 of plaintiff‘s complaint alleges that plaintiff‘s discharge constituted a breach of an employment agreement between the parties in that the discharge was аrbitrary and capricious. Plaintiff admits that the collective bargaining agreement in effect at the time he was first hired in 1946 expired the following year and that he was not covered by any other collective bargaining agreement at the time of his discharge. ‍‌​​​‌‌‌​‌​​​​​​​‌‌‌​‌​​‌​​​‌​​‌​​​​​‌​‌‌​‌​​​​‌‌‍He asserts, however, the existence of a continuing implied contract which he claims was entered into on the date of his hire in 1946 and evidenced thereafter by the acts of the parties.

We think the trial court correctly granted summary judgment for defendant on this count. Plaintiff has at best alleged a contract of indefinite hire. Such contracts are terminable at the will of either party, with or without cause.

,
. Such a contract is not violated even by an arbitrary and capricious discharge. Plaintiff has thus failed to state a claim in this count upon which relief can be granted and summary judgment was properly granted.

III.

Count 6 of plaintiff‘s complaint charged defendant with libeling plaintiff in that plaintiff‘s employment file reflected that plaintiff was not a competent employee. An amended version of this count alleged that plaintiff was defamed whеn defendant, through its agents, stated that plaintiff‘s employment was terminated because of his lack of productivity. Summary judgment was correctly granted as to this count. Plaintiff failed to allege where, when, or to whom this statement wаs published, or that there even was a publication to anyone other than the plaintiff himself. Plaintiff‘s allegations thus failed to state a cause of action for libel. 11 Callaghan‘s Michigan Pleading & Practice (2d ed), § 78.09, pp 256-257. Summary judgment was thus appropriately granted on this count.

Affirmed in part and reversed in part. No costs.

D. F. WALSH, J., concurred.

D. E. HOLBROOK, JR., J. (concurring). Since no distinguishing features exist in the contract for personal services for employment such as we found to be present in

, I agree that the trial court should be affirmed.