Lead Opinion
(to affirm). Dеfendant 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 roоm 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
Subsequently, on April 9, 1976, plaintiff filed a complaint in Wayne Circuit Court аgainst 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 аnd 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,
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 assеrt 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 main
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, thе 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.
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 othеr statutorily protected civil
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.
Notes
MCLA 423.307(b); MSA 17.458(7)(b).
Another panel of the Court of Appeals reached a similar conclusion in Hernden v Consumers Power Co,
Pompey v General Motors Corp,
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).
Concurrence Opinion
(concurring). I concur with the analysis and result reached by Chief Justice Kavanagh.
This Court’s opinion in Pompey v General Motors Corp,
The reason for framing the Pompey exception
"[Wjhile for purposes of discussion here, we accept Pompey for the general proposition cited, that case is easily distinguished from the case at bar. Pompey dealt with the exclusive-cumulative dichotomy regarding statutory remedies in the context of fundamental or civil rights. The instant case involves damages arising out of the alleged violation of proprietary rights.” (Emphasis in original.) Lamphere, supra, 126, fn 9.
It is, therefore, the fundamental nature of the right involved, i.e., that a person be free from discrimination whether the discrimination be based on race or age, that compels us to conclude a cumulative remedy is warranted.
There are other cogent reasons for amplifying Pompey. We are cognizant of the fact that the Legislature in reenaсting the Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., codified this Court’s decision in Pompey by expressly providing for direct access to circuit court for an aggrieved party. MCL 37.2801; MSA 3.548(801). Not only was direct access granted for claims of race discrimination, but also for age, sex, national origin, religion, handicap and marital status claims.
In examining the legislativе history of the reenactment, we are persuaded the Legislature felt strongly that a "direct access” provision was essential to the act. While the original bill in the House, House Bill 4055, contained no provision granting direct access, the direct access provision appеared in the first substitute to House Bill 4055. In all, six substitute bills were presented to the Legislature and while numerous changes and deletions were made in the original bill and all the
The import of the new Michigan direct access provision was emphasized by Chief Judge Cornelia G. Kennedy in her decision in Schroeder v Dayton-Hudson Corp,
Schroeder, much like the case before us, involved an age discrimination claim where plaintiff sought direct access to the courts without having filed a complaint with the Michigan Civil Rights Commission within 90 days after the alleged act of discrimination. In granting direct access, the Schroeder court, applying precedent of this Court, persuasively reasoned that the reenacted Civil Rights Act should be given retroactive aрplication.
Additionally, we see no merit in the suggestion that by extending Pompey we are adding to an
But more importantly, we find the overcrowded court docket argument pales in contrast with the essential issues to be addressed in civil rights matters. As the United States Supreme Court has recognized congressional intent to give the "highest priority” to civil rights claims, Alexander v Gardner-Denver Co,
(to reverse). In this appeal we are asked to decide whether the holding in Pompey v General Motors Corp,
I
Plaintiff was employed as an elevator mechanic by defendant from 1967 to December of 1974. On December 6, 1974, following a transfer from the maintenance to the sеrvice department, plaintiff was told that there was no work and was laid off. Plaintiff was 55 years old.
On June 9, 1975, 184 days after his layoff,
The trial court determined that the administrative remedy provided in FEPA was exclusive and saw sufficient material distinctions between age and racial discrimination to decline to extend Pompey. Plaintiff’s аction was dismissed with prejudice. The Court of Appeals, seeing no basis for distinguishing age and racial discrimination, reversed.
Finding Pompey to have been wrongly decided, we would reverse the decision of the Court of Appeals and reinstate the judgment of the trial court. When the Legislature creates a remedy unknown to the common law and provides an administrative agency to administer grievances, then exclusive jurisdiction to hear such claims lies with that administrative body, unless otherwise provided by the Legislature. However, because of the subsequently enacted Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., which еxpressly provides for direct access to the circuit court,
II
Essentially, рlaintiff’s argument that age should be treated the same as racial discrimination has merit if we are to abide by what we believe to have been an erroneous conclusion in Pompey. In that decision, the Court excised from the FEPA the requirement that race discrimination cases be heard before the Civil Rights Commission. The same legislation contained prohibitions against discrimination on the basis of age, sex, religion, color, national origin or marital status.
We agree with the Chief Justice that the statute treated each category of discrimination as equally onerous. Race shоuld be treated no differently than age. Applying Pompey, Justice Kavanagh finds that all discrimination cases under FEPA could go either to the commission or the circuit court. It is here that we part.
The act in effect at the time of this action charged the commission with hearing civil rights complaints. The appeals came to the courts. Because we made a judicial exception for one of the proscribed discriminatory acts, we find ourselves in the position of either condoning an absurd result by saying other bases of prohibited discrimination are to be treated differently from that of race, or
The fact that the stаtute later was changed to provide for primary jurisdiction in the circuit court (possibly because Pompey placed the commission in an anomalous position and rendered the statutory limitations meaningless) does not change Mr. Holmes’ legal position in this litigation.
Ill
The problem with permitting Pompey to continue (and expand) as precedent lies in its application to other legislative provisions and concomitant administrative agencies regarding their jurisdiction, operation and powers. This Court rejected such an attempt to utilize Pompey in Lamphere Schools v Lamphere Federation of Teachers,
Philosophically, administrative hearing panels are intended to provide expertise in a given field and, hopefully, speedier resolutions in areas of the multitudinous problems of citizens.
Importantly, they also are intended to relieve the courts.
The courts at this time in history are inundated with litigation involving almost every societal and individual concern. Learned judges and the practicing bar addressing nationwide court congestion have recommended inter alia expanded use of
If we leave standing in Michigan the Pompey precedent, we leave open the door to judicial manipulation of other statutes relating to administrative law. We can extrаct or subtract from or enlarge jurisdiction as we personally wish. These are exclusively legislative matters and correctly so.
For these reasons, among many others, we would overrule Pompey and reverse the Court of Appeals below. The judgment of the trial court should be reinstated. The holding necessarily would be prospective as to all other cases.
Reverse.
For example, District of Columbia Human Rights Act, D C Code § 6-2296 (Supp V, 1978); N Y Exec Law, art 15, § 297, paragraph 9. We note that although both the District of Columbia and New York statutes grant direct access to the courts, this is not a cumulative remedy. A person must choose either to go directly to сourt or to the administrative agency.
Chief Judge Kennedy cites a series of cases from this Court to support her position regarding retroactive application. See, e.g., Lafayette Transfer & Storage Co v Michigan Public Utilities Comm,
There is no reason to believe that the Michigan Supreme Court would not decide that the Civil Rights Act’s procedural revisions shоuld not be applied retroactively in this case.” Schroeder, supra,
MCL 423.307(b); MSA 17.458(7)(b) read, in pertinent part:
"Any individual claiming to be aggrieved by an alleged unlawful employment practice may, by himself or his agent, make, sign and file with the board, within 90 days after the alleged act of discrimination, a verified complaint in writing * * (Emphasis added.)
The act, effective March 31,1977, provides:
"(1) A person alleging a violation of this act may bring a civil action for appropriate injunctive reliеf or damages, or both.
"(2) An action commenced pursuant to subsection (1) may be brought in the circuit court for the county where the alleged violation
"(3) As used in subsection (1), 'damages’ means damages for injury or loss caused by each violation of this act, including reasonable attorney’s fees.” MCL 37.2801; MSA 3.548(801).