Hillman v. Consumers Power Co.

• Decision Date: 06 June 1979
• Docket Number: Docket No. 77-5210
• Parties: George H. HILLMAN, Jr., Plaintiff-Appellant, v. CONSUMERS POWER COMPANY, a Michigan Corporation, Defendant-Appellee. 90 Mich.App. 627, 282 N.W.2d 422, 33 Fair Empl.Prac.Cas. (BNA) 498, 20 Empl. Prac. Dec. P 30,227
• Court: Court of Appeal of Michigan — District of US

Page 422

282 N.W.2d 422

George H. HILLMAN, Jr., Plaintiff-Appellant, v. CONSUMERS POWER COMPANY, a Michigan Corporation Defendant-Appellee.

Docket No. 77-5210.

90 Mich.App. 627, 282 N.W.2d 422,

33 Fair Empl.Prac.Cas. (BNA) 498,

20 Empl. Prac. Dec. P 30,227

Court of Appeals of Michigan.

June 6, 1979.

Rehearing Denied Aug. 21, 1979.

Released for Publication Aug. 22, 1979.

[90 MICHAPP 628] V. Paul Donnelly, Detroit, for plaintiff-appellant.

Dykema, Gossett, Spencer, Goodnow & Trigg by Seth M. Lloyd and James D. Tracy, Detroit, for defendant-appellee.

Before ALLEN, P. J., and MAHER and TOWNSEND, ^* JJ.

TOWNSEND, Judge.

Plaintiff appeals from an August 9, 1977, decision of the Jackson County Circuit Court granting defendant's motions for accelerated and summary judgment, thereby terminating the plaintiff's action which alleged discrimination on account of age and race resulting in a loss of salary, demotion and failure to promote.

Plaintiff began employment with defendant in 1937. He advanced regularly through the ranks until 1970 when he suffered a demotion. Shortly thereafter, however, plaintiff was promoted to the position of Assistant Director for Customer Relations.

When the Director of Customer Relations vacated such position, plaintiff anticipated that he would be considered the logical choice to occupy that position. However, on April 1, 1974, a younger, black employee was named to such position. Plaintiff was then 58 years old. Plaintiff voluntarily retired several months thereafter.

On March 5, 1975, plaintiff filed a complaint with the Michigan Civil Rights Commission alleging that he had been denied promotion and effectively forced to retire because of his age and race. In April, 1975, plaintiff instituted suit in Federal [90 MICHAPP 629] Court on the same grounds. That action and a later Federal Court action were voluntarily dismissed by plaintiff following which a third complaint, also based on age and race discrimination, was filed in September, 1975. After determining that plaintiff had failed to comply with the jurisdictional procedural requirements of the Federal Statute, and particularly the notice requirements of 29 U.S.C. § 626(d), the Federal Court dismissed plaintiff's lawsuit with prejudice on June 14, 1976.

In the meantime, on December 16, 1975, the Michigan Civil Rights Commission dismissed plaintiff's complaint on grounds of insufficient evidence.

Following such adverse determinations, plaintiff commenced action in the Jackson County Circuit Court in November of 1976, alleging breach of an employment contract and damages for discrimination on account of age and race resulting in a loss of salary, demotion and failure to promote.

In granting defendant's motions for accelerated judgment and for summary judgment, the Circuit Court concluded that plaintiff had failed to exhaust his administrative remedies and that his suit was, in any event, barred by the preemptive nature of the Federal Statute. Plaintiff thereupon appealed to this Court and presents for adjudication two issues; namely, whether plaintiff must first exhaust his administrative remedies, and whether the Federal Statute preempts the field.

I

Statutory remedies are not exclusive, and plaintiff need not exhaust State administrative remedies before pursuing his "cumulative judicial remedy" available to persons claiming race or age discrimination. Such principle has been established beyond [90 MICHAPP 630] dispute by the Michigan Supreme Court in Holmes v. Haughton Elevator Co., 404 Mich. 36, 41-42, 272 N.W.2d 550 (1978); Pompey v. General Motors Corp., 385 Mich. 559-560, 189 N.W.2d 243 (1971).

II

The question as to whether the Federal Age Discrimination in Employment Statute, 29 U.S.C. §§ 621-634, preempts State regulation of age discrimination in employment, appears to be a question of first impression in the State of Michigan.

Federal preemption occurs when compliance with both Federal and State regulations is physically impossible, when the nature of the subject matter requires Federal supremacy and uniformity or when Congress intended to displace the State legislation. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-152, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963).

It is possible for an employer to comply with both State and Federal Statutes by refraining from employment discrimination based on age.

A careful review of the Federal Statute indicates that Congress did not expressly or impliedly oust the states from their power to legislate as to age discrimination. To the contrary, the Federal Act anticipates and encourages state regulation. 29 U.S.C. § 633(a) specifically states that the Federal Law will not affect the jurisdiction of State agencies performing like functions and 29 U.S.C. § 633(b) gives state proceedings certain priorities over Federal actions relating to age discrimination. Simpson v. Alaska State Comm. for Human Rights, 423 F.Supp. 552, 555-556 (D.Alas.1976).

Preemption cannot be inferred alone from the [90 MICHAPP 631] comprehensive nature of the Federal legislation. New York State Dep't of Social Services v....