Barczak v. Rockwell Intern. Corp.

• Decision Date: 17 May 1976
• Docket Number: Docket No. 23462
• Citation: 244 N.W.2d 24,68 Mich.App. 759
• Parties: Christine BARCZAK, Plaintiff-Appellant, v. ROCKWELL INTERNATIONAL CORPORATION, Defendant-Appellee. 68 Mich.App. 759, 244 N.W.2d 24, 16 Fair Empl.Prac.Cas. (BNA) 1595, 12 Empl. Prac. Dec. P 11,081
• Court: Court of Appeal of Michigan — District of US

Page 24

244 N.W.2d 24

Christine BARCZAK, Plaintiff-Appellant, v. ROCKWELL INTERNATIONAL CORPORATION, Defendant-Appellee.

Docket No. 23462.

68 Mich.App. 759, 244 N.W.2d 24,

16 Fair Empl.Prac.Cas. (BNA) 1595,

12 Empl. Prac. Dec. P 11,081

Court of Appeals of Michigan.

May 17, 1976.

Released for Publication July 19, 1976.

[68 MICHAPP 761] Barbara G. Robb, Detroit, for plaintiff-appellant.

Miller, Canfield, Paddock & Stone by James E. Tobin, Detroit, for defendant-appellee.

Before BRONSON, P.J., and BASHARA and CAVANAGH, JJ.

BRONSON, Presiding Judge.

On August 8, 1974, plaintiff brought a civil damage action in circuit court for redress of her statutorily created right to be free from discrimination on the basis of sex in private employment. The specific statutes relied upon were the Michigan State Fair Employment Practices Act, M.C.L.A. § 423.301 Et seq.; M.S.A. § 17.458(1) Et seq., and the Equal Pay Act, M.C.L.A. § 750.556; M.S.A. § 28.824. The last complained of action by defendant was the allegedly wrongful discharge of plaintiff on June 22, 1970. Consequently, defendant made a motion for accelerated judgment pursuant to GCR 1963, 116.1(5), on grounds that plaintiff's claim was barred by the statute of limitations. On February 14, 1975, the trial judge granted that motion, and plaintiff appeals that ruling here.

The trial judge applied the three-year limitation period for injury to the person, found in M.C.L.A. § 600.5805(7); M.S.A. § 27A.5805(7), to plaintiff's cause of action. Plaintiff does not argue that a longer period must apply to her claim. Instead, she argues that when she filed a complaint with the Michigan Civil Rights Commission pursuant to the Michigan State Fair Employment Practices Act, Supra, the running of the statute of limitations [68 MICHAPP 762] period was tolled. We cannot agree, and we therefore affirm the trial court.

Plaintiff relies on the tolling statute, M.C.L.A. § 600.5856; M.S.A. § 27A.5856, which provides as follows:

'The statutes of limitations are tolled when

'(1) the complaint is filed and a copy of the summons and complaint are served on the defendant, or when

'(2) jurisdiction over the defendant is otherwise acquired, or when,

'(3) the complaint is filed and a copy of the summons and complaint in good faith, are placed in the hands of an officer for immediate service, but in this case the statute shall not be tolled longer than 90 days thereafter.'

She argues that section (2), tolling the statute of limitations when 'jurisdiction over the defendant is otherwise acquired', applies to prior administrative proceedings. We reject that view, for a long line of Michigan cases have applied the tolling provisions only when jurisdiction over defendant is gained pursuant to Court proceedings involving the same cause of action.

In Buscaino v. Rhodes, 385 Mich. 474, 472, 189 N.W.2d 202, 205 (1971), our Supreme Court explained the scope of the tolling statute as follows:

'M.C.L.A. § 600.5856 (Stat.Ann.1962, Rev. § 27A.5856) merely provides a substitute for the repealed C.L.1948, § 609.19 (Stat.Ann. § 27.611). It deals only with Prior lawsuits between the parties which have not adjudicated the merits of the action. This understanding of M.C.L.A. § 600.5856 (Stat.Ann.1962, Rev. § 27A.5856) conforms with the scheme of the five preceding sections of the Revised Judicature Act, all of which deal with extension and suspension of periods of limitations.' (Emphasis added.)

[68 MICHAPP 763] That requirement of a lawsuit was recently reiterated in Smith v. Bordelove, 63 Mich.App. 384, 386, 234 N.W.2d 535, 536 (1975):

'Where a suit is commenced, but later dismissed without prejudice, the statute is tolled for the period of time during which the court had jurisdiction over the defendant, and thereafter the statute begins to run again.' (Emphasis added.)

Consistent with those expressions of the rule, the cases holding that the limitations period was tolled have all involved prior court proceedings. See Shrader, Inc. v. The Ecclestone Chemical Co., Inc., 22 Mich.App. 213, 177 N.W.2d 241 (1970), Stewart v. Michigan Bell Telephone Co., 39 Mich.App. 360, 197 N.W.2d 465 (1972), and Reich v. State Highway Commission, 43 Mich.App. 284, 204 N.W.2d 226 (1972). ¹

Plaintiff contends that even if, as a general rule, a lawsuit must be involved in order to toll the running of the limitations period, special considerations attach when a civil rights action is involved. She argues that the ordinary tolling rules must give way to the preeminent public policy of this state to protect its citizens against discrimination on the basis of sex. We agree that the policy of enforcing an individual's civil rights is to be given 'highest priority', but we hold that the same tolling provisions apply regardless of the nature of the cause of action.

We look to Federal law, as did plaintiff, in [68 MICHAPP 764] reaching this result. In particular, we find the analysis in Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), to be helpful. In that case, the Supreme Court was called upon to determine if the filing of a charge of employment discrimination with the Equal Employment Opportunity Commission pursuant to section 706 of Title VII of the Civil Rights Act of 1964; 42 U.S.C. § 2000e--5, tolled the running of the period of limitation applicable to an independent action, based upon the same facts, instituted under 42 U.S.C. § 1981. Under Federal law, the state statute of limitations and tolling statutes apply unless they violate Federal policy. There, petitioner conceded that no state tolling provision was applicable, so the Court was required to examine the conflict with Federal policy.

The majority opinion, written by Justice Blackmun, held that the running of the statute of limitations did not violate the broad remedial purposes of Title VII. The reasoning was as follows:

'Although state law is our primary guide in this area, it is not, to be sure, our exclusive guide. As the Court noted in Auto Workers v. Hoosier Corp., 383 U.S. (696) at 706--707, 86 S.Ct. 1107, 16 L.Ed.2d 192, considerations of state law may be displaced where their application would be inconsistent with the federal policy underlying the cause of action under consideration.

'Petitioner argues that a failure to toll the limitation period in this case will conflict seriously with the broad remedial and humane purposes of Title VII. Specifically, he urges that Title VII embodies a strong federal policy in support of concilation and voluntary compliance as a means of achieving the statutory mandate of equal employment opportunity. He suggests that failure to toll the statute on a § 1981 claim during the pendency[68 MICHAPP 765] of an administrative complaint in the EEOC would force a plaintiff into premature and expensive litigation that would destroy all chances for administrative conciliation and voluntary compliance.

'We have noted this possibility above and, indeed, it is conceivable, and perhaps almost to be expected, that failure to toll will have the effect of pressing a civil rights complainant who values his § 1981 claim into court before the EEOC has completed its administrative proceeding. One answer to this, although perhaps not a highly satisfactory one, is that the plaintiff in his § 1981 suit may ask the court to stay proceedings until the administrative efforts at conciliation and voluntary compliance have been completed. But the fundamental answer to petitioner's argument lies in the fact--presumably a happy one for the civil rights claimant--that Congress clearly has retained § 1981 as a remedy against private employment discrimination separate from and independent of the more elaborate and time consuming procedures of Title VII. Petitioner freely concedes that he could have filed his § 1981 action at any time after his cause of action accrued; in fact, we understand him to claim an unfettered right so to do. Thus, in a very real sense, petitioner has slept on his § 1981 rights. The fact that his slumber may have been induced by faith in the adequacy of his Title VII remedy is of little relevance inasmuch as the two remedies are truly independent. Moreover, since petitioner's Title VII court action now also appears to be time-barred because of the peculiar procedural history of this case, petitioner, in effect, would have us extend the § 1981 cause of action well beyond the life of even his Title VII cause of action. We find no policy reason that excuses petitioner's failure to take the minimal steps necessary to preserve each claim independently.' (Emphasis added, footnotes omitted.)

We find the reasoning applicable here, as both this state and the Federal government have strong public policies in favor of remedying any violation of an individual's civil rights. We hold that the [68 MICHAPP 766] tolling of the statute of limitations is simply independent of the nature of the cause of action.

Affirmed. No costs, a public question being involved.

CAVANAGH, Judge (dissenting).

I dissent. I would hold that the acquisition of jurisdiction over a defendant by the Michigan...