Strachan v. Mutual Aid and Neigborhood Club, Inc. ( 1978 )

Bashara, J.

Plaintiff appeals a circuit court order granting defendant’s motion for an accelerated judgment.

After being discharged from her employment with defendant, plaintiff filed a complaint with the Michigan Civil Rights Commission claiming that her termination constituted an unlawful employment discrimination on account of age and sex. While the proceedings were pending with the commission, plaintiff instituted suit in the circuit court seeking relief for the same alleged unlawful discrimination. This action was dismissed "with prejudice” on defendant’s motion for accelerated judgment, which contended that plaintiff failed to first exhaust her administrative remedies before the commission. No appeal of the circuit court’s order of dismissal was taken by plaintiff.

Subsequently, the commission dismissed plaintiff’s action due to insufficient evidence to sustain the charge. Review of this determination was not pursued by plaintiff. Instead, she filed a second suit in the circuit court. This proceeding was dismissed on defendant’s motion for accelerated judgment, which was based on the claim that plaintiff’s suit was barred under the doctrine of res judicata. Plaintiff thereafter perfected this appeal.

Resolution of this controversy does not require us to review or pass upon the propriety of the first circuit court order of dismissal. Rather, it is apparent from the proceedings below that plaintiff had an opportunity to completely litigate the merits of her claim before the commission. Having failed to appeal its decision, the plaintiff is barred from collaterally attacking that determination by another proceeding. Accordingly, the order granting defendant’s motion is affirmed.

Res judicata is a jurisprudential doctrine founded upon the premise that litigation of a controversy must have a termination point. Otherwise, judicial resources would be unnecessarily expended, and the rights of litigants would be subjected to interminable contest.

The doctrine of res judicata becomes applicable when an adjudicatory proceeding on a contested issue has progressed to a final determination, and all available courses of appeal have been exhausted or not pursued within the prescribed time limitations. Thereafter, that issue becomes settled and may not be relitigated between the same parties in a collateral proceeding, absent some compelling equity not here pertinent. See Howell v Vito’s Trucking & Excavating Co, 386 Mich 37; 191 NW2d 313 (1971), Gursten v Kenney, 375 Mich 330; 134 NW2d 764 (1965). Further, this doctrine is applicable to administrative proceedings that are adjudicatory in nature and from which an appeal is provided, where the Legislature intends that the tribunal’s judgment is to be final absent an appeal. Senior Accountants, Analysts & Appraisers Assoc v City of Detroit, 399 Mich 449, 457-458; 249 NW2d 121, 124-125 (1976).

All proceedings initiated by plaintiff had the purpose of seeking relief for an alleged unfair employment practice, as provided in § 3a¹ of the Michigan State Fair Employment Practices Act, MCLA 423.301 et seq.; MSA 17.458(1) et seq. Any relief to which the plaintiff could establish legal entitlement was obtainable from the commission pursuant to its legislatively created powers. MCLA 37.5(h); MSA 3.548(5)(h).² However, the commission, after hearing witnesses and reviewing other evidence, issued an order dismissing plaintiffs complaint; an order from which no appeal was perfected.

MCLA 37.4; MSA 3.548(4) provided as follows:

"The commission shall investigate alleged discrimination against any person because of religion, race, color or national origin in the enjoyment of the civil rights guaranteed by law and by the constitution of this state, and shall secure the equal protection of such civil rights without such discrimination. A complaint alleging an unlawful discriminatory practice is subject to the same procedure as a complaint alleging an unfair employment practice under Act No. 251 of the Public Acts of 1955, being sections 423.301 to 423.311 of the Compiled Laws of 1948. Appeals from final orders of the commission, including cease and desist orders and refusals to issue complaints, shall be tried de novo before the circuit court for the county of Ingham, the circuit court for the county wherein the alleged unlawful discriminatory practice is alleged to have occurred or where the person, firm or corporation against whom the complaint was filed, resides or has his principal place of business. If an appeal is not taken within 30 days after the service of an appealable order of the commission, the commission may obtain a decree for the enforcement of the order from the circuit court which would have had jurisdiction of the appeal.”³ (Emphasis added.)

Evident from the language used is a legislative intent that an unappealed order of the commission becomes final. After 30 days from receipt of the commission’s order, if no appeal has been taken, enforcement of the order may be obtained merely by showing service of a regularly entered order and the jurisdiction of the commission and circuit court. Id.

Accordingly, we conclude that the commission’s order of dismissal became final when plaintiff failed to seek review within the prescribed time period. The circuit court order granting an accelerated judgment was a proper resolution of this case, albeit based upon the res judicata effect of a prior circuit court order on which we express no opinion as to propriety. Nevertheless, since the commission’s order is final, plaintiff is precluded from further litigation of the issues determined by that order.⁴

Affirmed.

D. C. Riley, P. J., concurred.

1 The applicable portion provides as follows:

"It is an unfair employment practice:

(a) For any employer, because any individual is between the ages of Í8 and 60, or because of the sex of any individual, to refuse to hire or otherwise to discriminate against him with respect to hire, tenure, terms, conditions or privileges of employment. Any such refusal to hire or discrimination shall not be an unfair employment practice if based on law, regulation, the requirements of any federal or state training or employment program or on a bona fide occupational qualification. It shall not be an unfair employment practice to refuse to select an individual over the age of 35 because of his age for an apprenticeship or an on-the-job training program intended to have a duration of more than 4 months.” MCLA 423.303a; MSA 17.458(3a). It should be noted that at the time of the plaintiffs discharge she was 58 years of age.

2 Since repealed by 1976 PA 453, effective March 31, 1977.

That section provided that the commission is empowered:

"To hold hearings, administer oaths, issue preliminary notices to witnesses to appear, compel through court authorization the attendance of witnesses and the production for examination of any books, papers or other records relating to matters under investigation or in question before the commission, take the testimony of any person under oath, and issue appropriate orders. The commission may make rules as to the issuance by individual commissioners of preliminary notices to appear.”

We construe the term "appropriate orders” to include any monetary recompense to which a complainant may be entitled as a result of the unfair employment practice. Our conclusion is aided in substantial part from insight provided by § 605 of the new Michigan Civil Rights Act, which delineates the permissible scope of commission orders. That section states in pertinent part:

"(2) Action ordered under this section may include, but is not limited to: * * * (i) Payment to the complainant of damages for an injury or loss caused by a violation of this act, including a reasonable attorney’s fee.” MCLA 37.2605(2)(i); MSA 3.548(605)(2)(i). Additionally, our Supreme Court has held that jurisdiction of actions for violations of the act rests concurrently with the commission and circuit courts and that civil damage remedies may be pursued in the courts "in addition to the remedial machinery provided by statute”. Pompey v General Motors Corp, 385 Mich 537, 560; 189 NW2d 243, 255 (1971).

3 Notwithstanding the statutory term "tried de novo”, this provision has been held to limit review by the circuit courts to an appeal in the nature of certiorari of the record developed from the commission’s proceedings. Accordingly, the circuit court’s review is limited to ascertaining if the commission’s determination is based upon legal error or arbitrary action. Ross v Taylor Township School Board, 377 Mich 15; 138 NW2d 402 (1965), Lesniak v Fair Employment Practices Commission, 364 Mich 495, 505-506; 111 NW2d 790, 796 (1961).

4 We recognize that the decision in Pompey v General Motors Corp, 385 Mich 537; 189 NW2d 243 (1971), permitted maintenance of a circuit court action subsequent to an unappealed commission order of dismissal. However, that case is distinguishable from the facts in the case at bar. In Pompey the commission’s order dismissed the action because commenced after the statute of limitations had expired. Such dismissals are not on the merits for res judicata purposes, since the running of the statute of limitations merely bars access to the forum and is not a determination of the merits of the claim. See Malesev v Garavaglia, 12 Mich App 282; 162 NW2d 844 (1968).

Further, where two or more forums have concurrent jurisdiction over the subject matter of a controversy, a judgment by one forum is conclusive as to all other forums with concurrent jurisdiction. Theisen v City of Dearborn, 5 Mich App 607; 147 NW2d 720 (1967), remanded on other grounds, 380 Mich 621; 158 NW2d 483 (1968).