Hernden v. Consumers Power Co., Docket No. 25001

• Decision Date: 22 November 1976
• Docket Number: Docket No. 25001
• Citation: 22 Fair Empl.Prac.Cas. (BNA) 1132,72 Mich.App. 349,249 N.W.2d 419
• Parties: Mervin W. HERNDEN, Plaintiff-Appellant, v. CONSUMERS POWER COMPANY, a Michigan Corporation, Defendant-Appellee. 72 Mich.App. 349, 249 N.W.2d 419, 22 Fair Empl.Prac.Cas. (BNA) 1132, 13 Empl. Prac. Dec. P 11,529
• Court: Court of Appeal of Michigan — District of US

Page 419

249 N.W.2d 419

Mervin W. HERNDEN, Plaintiff-Appellant, v. CONSUMERS POWER COMPANY, a Michigan Corporation Defendant-Appellee.

Docket No. 25001.

72 Mich.App. 349, 249 N.W.2d 419,

22 Fair Empl.Prac.Cas. (BNA) 1132,

13 Empl. Prac. Dec. P 11,529

Court of Appeals of Michigan.

Nov. 22, 1976.

Released for Publication Jan. 27, 1977.

[72 MICHAPP 350] De Lisle & Harper, P.C. by Dennis J. Harper, Harper Woods, for plaintiff-appellant.

Dykema, Gossett, Spencer, Goodnow & Trigg by Marilyn Jean Kelly, Detroit, for defendant-appellee.

Before BRONSON, P.J., and D. E. HOLBROOK, Jr. and WALSH, JJ.

BRONSON, Presiding Judge.

Plaintiff, Mervin W. Hernden, [72 MICHAPP 351] 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, M.C.L.A. § 423.301 Et seq.; M.S.A. § 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. M.C.L.A. § 423.307(b); M.S.A. § 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 [72 MICHAPP 352] collective bargaining agreement because plaintiff had failed to allege exhaustion of contractual provisions for redress of grievance 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 defendant 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 motion 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 erred 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 [72 MICHAPP 353] right to freedom from age discrimination in private employment.

Our holding is mandated by the Supreme Court decision in Pompey v. General Motors Corp., 385 Mich. 537, 189 N.W.2d 243 (1971). 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 free 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 Pompey, 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 limitations contained in the act. Pompey, supra, 543, 550, 189 N.W.2d 243. 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. Pompey, supra, 548--549, 189 N.W.2d 243, footnotes 4, 5, Pompey v. General Motors Corp., 24 Mich.App. 60, 179 N.W.2d 697 (1970).

On appeal to the Supreme Court, defendant [72 MICHAPP 354] 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 employer 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.' Pompey v. General Motors Corp., 385 Mich. 537, 550--551, 189 N.W.2d 243, 249 (1971) (Footnotes omitted.)

Defendant's argument on...