Schroeder v. Dayton-Hudson Corp., Civ. No. 75-71935.

Decision Date30 June 1978
Docket NumberCiv. No. 75-71935.
Citation448 F. Supp. 910
PartiesJessie M. SCHROEDER, Individually and on behalf of others similarly situated, Plaintiff, v. DAYTON-HUDSON CORPORATION, a Foreign Corporation, doing business in Michigan under the assumed name, J. L. Hudson Company, Defendant.
CourtU.S. District Court — Western District of Michigan

David Melkus, Flint, Mich., for plaintiff.

Timothy K. Carroll, Dykema, Gossett, Spencer, Goodnow & Trigg, Detroit, Mich., for defendant.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS

CORNELIA G. KENNEDY, District Judge.

This action was brought by Jessie M. Schroeder against Dayton-Hudson Corporation alleging jurisdiction on the basis of certain federal statutory rights as well as diversity of citizenship. The plaintiff is a Michigan citizen, while the defendant is a foreign corporation with its principal place of business in a state other than Michigan which does business in Michigan under the name J. L. Hudson Company. The complaint alleges that she began employment with J. L. Hudson Co. in 1947, and continued to work there until late 1972. J. L. Hudson was acquired by Dayton-Hudson in 1971.

Plaintiff's relationship with her employer was apparently satisfactory to both employer and employee until 1971. During the period of 1947 to 1971, the plaintiff rose from her entry level position as a salesperson to the executive position of Corporate Training Director. She attained this position in 1958, and remained at that level until she was separated from the company on October 17, 1972.

According to the complaint, during 1971, the new management engaged in certain activity designed to force plaintiff's resignation, including false accusations of poor performance and intrastaff relationships and false charges of failure to meet departmental objectives. These undeserved denunciations, she alleges, eventually caused her to develop physical and emotional problems which required hospitalization and treatment. In the fall of 1972 Mrs. Schroeder returned to her job, but on October 17, 1972, she was told that she could no longer continue in her job and would have to accept proffered termination terms under which she would receive a portion of her salary until she became 60 years of age, at which time she would be placed on early retirement.

It is the plaintiff's position that she properly performed all duties of her job. She claims that she was fired because of the policies of the new management and that these policies constituted age and/or sex discrimination in violation of the Fourteenth Amendment; the federal Fair Labor Standards Act, 29 U.S.C. § 206(d); the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.; 5 U.S.C. § 7151; 42 U.S.C. §§ 1981, 1985; the Michigan Constitution of 1963, Article I, Section 2; the Michigan Fair Employment Practices Act, M.C.L.A. §§ 423.301, .303a, M.S.A. §§ 17.458(1), .458(3a); the Minimum Wage Law of 1964, M.C.L.A. §§ 408.397, 750.556, M.S.A. §§ 17.255(17), 28.824; and the common law and public policy of the State of Michigan. The plaintiff urges the Court to take jurisdiction over the state law claims on the basis of pendent jurisdiction, as well as diversity jurisdiction, and that the Court certify this as a class action.

The plaintiff has also included three other grounds for relief in her complaint: breach of contract, wrongful discharge, and intentional infliction of emotional distress.

This case is now before the Court on the defendant's motion to dismiss.1

The statute of limitations issue is critical to several aspects of plaintiff's claims and will be discussed first.

If the statute of limitations began to run at the time at which the plaintiff was removed from her job, October 17, 1972, many of the grounds for recovery upon which the plaintiff relies would be unavailable either because the statute of limitations has run or because the plaintiff failed to pursue her administrative remedies in a timely manner. The plaintiff contends that the statute of limitations defense is inapplicable, that the defendant's violations were and are of a continuing nature and that the action is, therefore, timely brought. The defendant asserts that the statute of limitations began to run on October 17, 1972 and that the same date begins the period during which administrative remedies had to be pursued.

As support for this continuing violation theory, plaintiff relies upon Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976) and Evans v. United Air Lines, 534 F.2d 1247 (7th Cir. 1976), rev'd, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). In Franks, a Title VII case, the Supreme Court held that it was appropriate to award seniority to black applicants hired pursuant to court order as over the road (OTR) truck drivers from the date that they applied for employment at Bowman Transportation Company. The beneficiaries of the Supreme Court's holding in Franks were the members of a class (class 3) composed of black applicants that had applied for an OTR driving position between the beginning of 1970 and January 1, 1972. 424 U.S. at 751, 758 n. 10, 96 S.Ct. 1251. However, the Supreme Court, in Franks, was not concerned with defining a continuing violation or statute of limitations problem since the intervening plaintiff that represented class 3 had filed a complaint with the EEOC in a timely manner after having been refused a job at Bowman Transportation and all members of the class had applied after the date the complaint of the class representative was filed with the EEOC.2

Evans has recently been reversed by the United States Supreme Court, United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), which held that there was no continuing violation. The reversal eliminated any support that Evans might otherwise have provided for the plaintiff's theory.

At the time that Mrs. Schroeder was forced to leave her job, she knew all of the effects of the corporation's action. Stated in another way, everything that has occurred and all of the effects that Mrs. Schroeder will continue to feel in the future arise out of the allegedly discriminatory act which was taken on October 17, 1972 or prior acts. It was upon that date that whatever causes of action Mrs. Schroeder may have arose, and all applicable statutes of limitation began to run from that date. See also Hiscott v. General Electric Co., 521 F.2d 632, 635 (6th Cir., 1975). The fact that the plaintiff might be able to prove that a pattern or practice of sex and/or age discrimination has continued to exist at her former place of employment is also of no help to her. To be a suitable representative of a class allegedly victimized by discrimination, one must file a complaint in a timely manner. That there may be others against whom discriminatory acts are continuing does not toll the statute of limitations against one whose cause of action would otherwise be time barred.

Having arrived at this conclusion, it is appropriate to grant the motion to dismiss on all claims with a limitation period of less than three years. This would eliminate the claim brought under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq., as the plaintiff would have had to file a complaint with the Secretary of Labor within 300 days of the alleged violation, and this she did not do. That claim is, therefore, dismissed.

The plaintiff's similar claim under the Michigan Fair Employment Practices Act (FEPA), M.C.L.A. §§ 423.301, .303a, M.S.A. §§ 17.458(1), .458(3a), is likewise time barred. The procedural section of that statute provides that any aggrieved individual "may . . . make, sign and file with the board, within 90 days after the alleged act of discrimination, a verified complaint in writing . . ." M.C.L.A. § 423.307(b) M.S.A., § 17.458(7)(b). This she failed to do in a timely manner. The claim based solely upon the FEPA statute is dismissed.

Plaintiff also asserts a state recognized civil action for age discrimination in employment based upon the FEPA but independent of the statute. An action independent of the FEPA was recognized by the Michigan Supreme Court in Pompey v. General Motors Corp., 385 Mich. 537, 189 N.W.2d 243 (1971), a case which involved racial discrimination. The Michigan Court of Appeals has recently held that a "Pompey type" of judicially recognized civil action exists in age discrimination as well. Hernden v. Consumers Power Co., 72 Mich. App. 349, 249 N.W.2d 419 (1976). This Court is not, however, bound by the Michigan Court of Appeals decision, since it is not a decision on state law by the highest court in the state and this Court is convinced that the Michigan Supreme Court would decide otherwise. Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967). The Court of Appeals in Hernden felt that it was required to reach its conclusion solely by reason of the Michigan Supreme Court's decision in Pompey. This Court believes that the panel of the Michigan Court of Appeals misread Pompey and that the basis for the Pompey holding regarding race discrimination does not exist with respect to age discrimination.

In Pompey, the Michigan Supreme Court was dealing with racial discrimination. It held that insofar as that "specific civil right" (385 Mich. at 551, 189 N.W.2d 243) is concerned, the remedies under the statute and common law are cumulative. In arriving at its conclusion, the Michigan Supreme Court relied on a number of its earlier decisions which had held that a person had a civil cause of action against a person that had discriminated against him/her on the basis of race in violation of a criminal statute. See St. John v. General Motors Corp., 308 Mich. 333, 13 N.W.2d 840 (1944); Bolden v. Grand Rapids Operating Corp., 239 Mich. 318, 214 N.W. 241 (1927); Ferguson v. Gies, 82 Mich. 358,...

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