Constantinoff v. Emma L Bixby Hospital , 111 Mich. App. 575 ( 1981 )

111 Mich. App. 575 (1981) 314 N.W.2d 698

CONSTANTINOFF
v.
EMMA L. BIXBY HOSPITAL.

Docket No. 54302.

Michigan Court of Appeals.

Decided December 1, 1981.

Donald J. Morbach & Associates, P.C. (by Lucetta F. Selecky), for plaintiff.

Robertson, Bartlow, DeChenes & Sauter, P.C., for defendant.

Before: DANHOF, C.J., and M.F. CAVANAGH and D.R. FREEMAN,^[*] JJ.

D.R. FREEMAN, J.

Plaintiff brought a complaint in circuit court seeking injunctive and other relief for violations of § 202 of the Michigan Handicappers' Civil Rights Act, MCL 37.1202; MSA 3.550(202). She filed a similar complaint with the Michigan Civil Rights Commission. Defendant claimed that the circuit court could not exercise jurisdiction so long as plaintiff's complaint with the Civil Rights Commission remained pending. The judge agreed, dismissing the action without prejudice to plaintiff's right to reinstitute the complaint if she should happen to involuntarily dismiss the complaint before the Civil Rights Commission without an adjudication on the merits. The trial judge held that considerations of judicial economy required that plaintiff be denied the opportunity to pursue an action in one forum while an action in another forum remained pending. Plaintiff appeals by right.

We reverse. This Court has held that a circuit court cannot decline jurisdiction of a civil rights action alleging sex discrimination even though an action based on the same facts is pending with the Civil Rights Commission. Avant v National Bank of Detroit, 81 Mich. App. 543; 265 NW2d 410 (1978). See also Strachan v Mutual Aid & Neighborhood Club, Inc, 81 Mich. App. 165, 174-176; 265 NW2d 66 (1978) (MAHINSKE, J., dissenting), rev'd on other grounds 407 Mich. 928; 285 NW2d 297 (1979). Although the Court in Avant, supra, noted that an additional reason supporting its holding was the subsequent voluntary dismissal of plaintiff's complaint with the Civil Rights Commission, the language of the Court clearly indicates that the absence of this factor would not have led to a different result. For purposes of determining this jurisdictional question, no distinction can be drawn between discrimination based on sex and discrimination based on a handicap. See Holmes v Haughton Elevator Co, 404 Mich. 36, 42-43; 272 NW2d 550 (1978).

This Court, in Avant, supra, properly relied on the strong policy favoring direct and immediate access to the courts for plaintiffs making civil rights claims, as recognized by the Supreme Court in Pompey v General Motors Corp, 385 Mich. 537, 558-559; 189 NW2d 243 (1971). This policy is embodied in our constitution (Const 1963, art 5, § 29), in the Elliott-Larsen Civil Rights Act (MCL 37.2803; MSA 3.548[803]) and in the Handicappers' Civil Rights Act (MCL 37.1607; MSA 3.550[607]). See also Barczak v Rockwell International Corp, 68 Mich. App. 759, 765; 244 NW2d 24 (1976), and Civil Rights Comm v Chrysler Corp, 64 Mich. App. 393, 407; 235 NW2d 791 (1975).

We also reject defendant's claim that the exercise of concurrent jurisdiction by the circuit court impermissibly subjects it to the possibility of inconsistent verdicts. A complaint alleging an act prohibited by the Handicappers' Civil Rights Act is subject to the same procedures as a complaint arising under the Elliott-Larsen Civil Rights Act. MCL 37.1605; MSA 3.550(605). Section 601 of the Elliott-Larsen Civil Rights Act empowers the commission to promulgate rules to carry out that act. MCL 37.2601(1)(f); MSA 3.548(601)(1)(f). The Civil Rights Commission, acting under that authority, has promulgated a rule governing the concurrent filing of complaints alleging the same facts with the commission and in the circuit court. Referring to a circuit court proceeding, 1979 AC, R 37.4(4)(e) states, "Where such a proceeding is pending, the commission or department may, in its discretion, delay consideration or action on the complaint filed". In the trial court, plaintiff orally claimed that the commission had deferred action on the complaint before it, pending the resolution of the circuit court action. So long as plaintiff can secure a deferral of consideration by the commission, she should not be barred from pursuing her statutory remedies in circuit court.

In light of our disposition of the case, it is unnecessary to address plaintiff's other claim on appeal.

Reversed and remanded. Costs to plaintiff.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.