Northville Public Schools v. Michigan Civil Rights Com'n

• Decision Date: 09 November 1982
• Docket Number: Docket No. 54160
• Citation: 118 Mich.App. 573,325 N.W.2d 497
• Parties: , 36 Fair Empl.Prac.Cas. (BNA) 250, 7 Ed. Law Rep. 392 NORTHVILLE PUBLIC SCHOOLS, Plaintiff-Appellee, v. MICHIGAN CIVIL RIGHTS COMMISSION, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 497

325 N.W.2d 497

118 Mich.App. 573, 36 Fair Empl.Prac.Cas. (BNA) 250,

7 Ed. Law Rep. 392

NORTHVILLE PUBLIC SCHOOLS, Plaintiff-Appellee, v. MICHIGAN CIVIL RIGHTS COMMISSION, Defendant-Appellant.

Docket No. 54160.

Court of Appeals of Michigan.

Submitted May 4, 1982.

Decided Aug. 23, 1982.

Released for Publication Nov. 9, 1982.

Keller, Thoma, Schwarze & Schwarze, P.C. by John L. Gierak, Detroit, for plaintiff-appellee.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen. and Michael A. Lockman and Catherine M. Fleming, Asst. Attys. Gen., for defendant-appellant.

Before KELLY, P.J., and T.M. BURNS and MacKENZIE, JJ.

MacKENZIE, Judge.

This case presents a claim of sexual discrimination in violation of the former Fair Employment Practices Act, M.C.L. § 423.301 et seq.; M.S.A. § 17.458 et seq. The former act was repealed by 1976 P.A. 453, effective March 31, 1977, which also enacted what is now the Elliott-Larsen Civil Rights Act, M.C.L. § 37.2101 et seq.; M.S.A. § 3.548(101) et seq. Claimant Mary Ellen Shaughnessy filed a complaint with the Department of Civil Rights on February 3, 1977, and the department charged respondent Northville Public Schools with sexual discrimination. A hearing referee initially found for respondent; however, the Civil Rights Commission found for claimant.

The facts which follow are taken from the Civil Rights Commission's findings of fact and are not disputed at this stage of the proceedings. Respondent hired claimant as a teacher on October 27, 1975. On September 7, 1976, claimant informed respondent that she was six months' pregnant, intended to continue teaching, and planned to use her accumulated sick leave and personal leave days for time missed for childbirth and recuperation. Respondent's superintendent wrote to claimant on October 5, 1976, acknowledging her letter but advising her that respondent's policy was to prohibit use of sick leave or personal leave days for maternity purposes. After a further letter from claimant, the superintendent wrote to claimant on October 13, 1976, offering her a temporary leave of absence without pay for a period of time equal to her accumulated sick leave and personal leave days. Claimant complied with the conditions of the temporary leave of absence but expressly informed respondent that her compliance was not to be construed as a waiver of her rights.

Claimant's child was born on October 23, 1976. Claimant returned to work on November 10, 1976. As of October 20, 1976, claimant had 17 sick leave days accumulated. Fourteen work days were missed during the leave period.

Respondent appealed the decision of the Civil Rights Commission to circuit court. Such appeals are tried de novo; see Const.1963, art. 5, § 29. The circuit court reversed the decision of the commission and the commission appeals by right.

I

The circuit court held that, as a matter of law, respondent's refusal to allow its employees to use sick leave days for maternity purposes did not constitute sexual discrimination. The circuit judge relied on General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), to which may be added Nashville Gas Co. v. Satty, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977). These federal cases interpreted Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Federal courts have had a much greater opportunity to review questions concerning discrimination in employment than have state courts. Consequently, federal precedent dealing with such questions is often highly persuasive, although not binding on a Michigan court reviewing a claim under our state statute. Civil Rights Comm. v. Chrysler Corp., 80 Mich.App. 368, 375 fn. 4, 263 N.W.2d 376 (1977). However, this Court has twice considered this issue and declined to follow Gilbert and its progeny in interpreting the Fair Employment Practices Act. Dep't of Civil Rights ex rel. Jones v. Dep't of Civil Service, 101 Mich.App. 295, 301 N.W.2d 12 (1980), lv. den. 411 Mich. 1034 (1981); Nickels v. Brown City Community Schools, 105 Mich.App. 708, 307 N.W.2d 707 (1981).

The instant case presents no reason to depart from the prior holdings of this Court. Gilbert was decided after our Legislature enacted the applicable provisions of the Fair Labor Practices Act and so is not necessarily a reliable guide as to what our Legislature intended. In this connection, we note that Gilbert was contrary to the overwhelming weight of federal pre-Gilbert authority; see the cases discussed in Pregnancy Leave or Maternity Leave Policy, or Lack Thereof, as Unlawful Employment Practice Violative of Title VII of the Civil Rights Act of 1963 (42 U.S.C.S. §§ 2000e et seq.), 27 A.L.R.Fed. 537, § 6, pp. 568-578. As Judge Kelly pointed out in his concurring opinion in Dep't of Civil Rights ex rel. Jones, supra, 101 Mich.App. 305-308, 301 N.W.2d 2, Gilbert was the subject of much criticism and Congress has amended Title VII to avoid the result reached in Gilbert. Similarly, in 1978 P.A. 153, our Legislature amended the Elliott-Larsen Civil Rights Act to prevent an interpretation of that act analogous to Gilbert; see M.C.L. § 37.2201(d); M.S.A. § 3.548(201)(d). The circuit judge erred by following Gilbert.

II

On appeal, respondent argues that the circuit court reached the correct result in view of the 90-day limitation period contained in M.C.L. § 423.307(b); M.S.A. § 17.458(7)(b). The circuit court did not reach this question. The commission held that claimant's filing of a complaint with the Department of Civil Rights had been timely. Respondent points out that its superintendent announced its policy concerning use of sick leave days for maternity purposes in a letter dated October 5, 1976, while the commission points out that negotiations continued after October 5 and that claimant was not actually denied pay for the 14 days at issue until after her return to work. Claimant's complaint was filed on February 3, 1977.

In Dep't of Civil Rights ex rel. Zlotogura v. Muskegon, 100 Mich.App. 557, 560, 298 N.W.2d 760 (1980), the Court considered various federal decisions in construing the limitation provision at issue here. The Court stated:

"The rationale underlying these decisions is that a seemingly final decision may be reconsidered and sometimes reversed and it is not desirable to encourage the initiation of litigation which could preclude the possibility of reconsideration; and, more...