(dissenting). This case presents questions dealing with the concurrent jurisdiction of the Michigan Civil Rights Commission and the circuit courts, and the application of the doctrine of res judicata following an erroneous dismissal "with prejudice” by the circuit court.
Plaintiff was employed by defendant as a secretary. She was fired in February, 1974, after work*173ing 17 years for defendant. On April 23, 1974, she filed a complaint with the Michigan Civil Rights Commission (CRC), alleging that she had been unlawfully discharged because of her age and sex. Plaintiff was 58 years old at the time of her discharge. Three days after filing with the CRC, on April 26, 1974, plaintiff filed a complaint in circuit court in which she alleged that the discharge was arbitrary, capricious, and without cause. She asserted two theories of recovery: (1) breach of implied contract, and (2) unlawful discharge on the basis of age in violation of the Michigan State Fair Employment Practices Act (FEPA), MCLA 423.301 et seq; MSA 17.458(1) et seq.1
In response to plaintiff’s complaint defendant filed a motion for summary judgment. GCR 1963, 117.2(1) and 117.2(3). The asserted basis for defendant’s motion was that plaintiff had failed to exhaust her administrative remedies. The circuit court agreed with defendant’s position, and issued an opinion stating in part, "Plaintiff must first exhaust her administrative remedies before seeking redress in circuit court”. On the basis of this finding the court dismissed plaintiff’s complaint by order dated February 21, 1975. The order specified that the complaint was dismissed "with prejudice”, and was signed by both parties’ attorneys below the words, "Approved as to content and form”.
Plaintiff did not appeal from the February, 1975, circuit court dismissal, but instead awaited the CRC’s decision on whether to issue a charge. On May 14, 1975, the CRC decided not to issue a charge and dismissed plaintiff’s petition on the basis of insufficient evidence. Plaintiff did not seek a reconsideration of this determination by the *174administrative agency, nor did she seek circuit court review of the agency’s dismissal.
On September 17, 1975, plaintiff filed a second action in the circuit court, based on her discharge from defendant’s employ and alleging age discrimination and breach of implied contract. Plaintiff asserted that the court now had jurisdiction because plaintiff had exhausted her administrative remedies as the court had instructed her to do. Defendant responded with a motion for accelerated judgment, on the grounds that (1) plaintiff had failed to exhaust her administrative remedies, because she had failed to seek reconsideration by the CRC and/or to appeal to circuit court, and (2) plaintiffs suit was barred by the doctrine of res judicata. Again the circuit court agreed with defendant, and on November 15, 1976, entered an order dismissing the second complaint on both of the above grounds. It is from this second dismissal that plaintiff appeals as of right. I would reverse.
I — Concurrent Jurisdiction of Civil Rights Commission and Circuit Court
Plaintiffs first contention is that the circuit court erred in dismissing her first complaint. I agree. The right to obtain and retain employment without discrimination on the basis of age is a civil right. MCLA 423.301; MSA 17.458(1);2 Holmes v Haughton Elevator Co, 75 Mich App 198, 200; 255 *175NW2d 6 (1977). In Pompey v General Motors Corporation, 385 Mich 537, 559-560; 189 NW2d 243 (1971), the Court held that statutory civil rights are enforceable concurrently in the Civil Rights Commission and the circuit court. The Pompey Court stated as follows:
"Since Bolden [Bolden v Grand Rapids Operating Corp, 239 Mich 318; 214 NW 241; 53 ALR 183 (1927)] and St. John [St John v General Motors Corp, 308 Mich 333; 13 NW2d 840 (1944)] clearly affirm the existence of a cause of action for damages under a civil rights statute, and since the judicial remedies provision in § 29 of Article 5 clearly intended no displacement of judicial remedies, defendant’s argument as to the 'exclusive’ jurisdiction of the Civil Rights Commission is without merit.
"We hold that plaintiff can maintain a civil damage action for redress of his statutorily created right to be free from discrimination in private employment, and that this remedy may be pursued in addition to the remedial machinery provided by statute.” (Footnote omitted.)
Pompey dealt with race discrimination; this Court in Holmes, supra, held that that decision by its terms also applied to age discrimination.
In dismissing plaintiffs first suit, the trial court relied upon Michigan Civil Rights Commission v Clark, 390 Mich 717; 212 NW2d 912 (1973), for the proposition that plaintiff was required to exhaust her administrative remedies before filing a complaint in circuit court. Clark provides no support for this proposition. Clark dealt with the question of whether a person against whom a complaint has been lodged by the CRC may, by seeking a judicial remedy, oust the CRC from consideration of a complaint against him. In the case at bar the question is whether or not a plaintiff asserting a *176violation of a statutory civil right, such as the right to be free from age discrimination, is entitled to seek concurrently administrative and judicial relief. This question was answered in the affirmative by the Supreme Court in Pompey, supra. It is of no consequence that plaintiff had already filed with the Civil Rights Commission at the time she began her circuit court action. Plaintiff was entitled to seek redress for the alleged discrimination in the Civil Rights Commission alone, in the circuit court alone, or in both forums at the same time or in whatever order plaintiff chose. This was the clear holding in Pompey, supra, and for this reason the circuit court erred in dismissing plaintiffs first complaint.
II — Res Judicata
Plaintiff did not appeal from the first circuit court dismissal. Instead, she waited until the CRC decided not to issue a charge, and then returned to the circuit court saying she had exhausted her administrative remedies. The circuit court again dismissed, this time on the basis of res judicata as well as failure to exhaust administrative remedies. On appeal plaintiff urges that this dismissal was also erroneous, and I would agree.
A. General Principles of Res Judicata
The policy considerations behind the rule of res judicata are well known. In Johnson v Haley, 357 Mich 411, 418; 98 NW2d 555 (1959), our Supreme Court quoted as follows from Baldwin v Iowa State Traveling Men’s Association, 283 US 522, 525; 51 S Ct 517; 75 L Ed 1244 (1931):
" 'Public policy dictates that there be an end of *177litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties.’ ”
By application of the doctrine of res judicata the courts seek to avoid the time and expense of repetitive litigation and the problem of inconsistent verdicts on the same cause of action. See Rose v Rose, 10 Mich App 233, 236; 157 NW2d 16 (1968). In order for a former judgment to be a bar, three requirements must be satisfied: (1) identity of subject matter, (2) identity of parties or their privies, and (3) a judgment on the merits. Tucker v Rohrback, 13 Mich 73, 75 (1864); Curry v Detroit, 394 Mich 327, 331; 231 NW2d 57 (1975).
In the present case it is undisputed that the parties and the subject matter are the same. What is disputed is whether the original dismissal was, or should be given the effect of, a judgment "on the merits”. I would answer this difficult and many-faceted question in the negative.
B. Dismissals not for "Lack of Jurisdiction”
GCR 1963, 504.2 provides in pertinent part:
"For failure of the plaintiff to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him.
"Unless the court in its order for dismissal otherwise speciñes, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, operates as an adjudication upon the merits. ” (Emphasis added.)
The type of dismissal provided for in this sub-rule, i.e., any involuntary dismissal not for lack of *178jurisdiction, where the court fails to specify that the dismissal is without prejudice, is given res judicata effect. Rose v Rose, supra; Irwin v Via, 2 Mich App 375, 378; 139 NW2d 893 (1966); Dalton v Mertz, 197 Mich 390, 394; 163 NW 912 (1917). The Authors’ Comments to Rule 504 point out this res judicata effect:
"In general, a voluntary dismissal under sub-rule 504.1, is without prejudice, and thus does not prohibit subsequent prosecution of the same action, unless the order of dismissal specifically states that it is with prejudice. Conversely, an involuntary dismissal under sub-rule 504.2 operates as an adjudication on the merits —that is, with prejudice — thereby proscribing subsequent prosecution of the same claim, unless the order of dismissal speciñes otherwise.” 2 Honigman and Hawkins, Michigan Court Rules Annotated, Authors’ Comments, Rule 504, p 333. (Emphasis added.)
Thus, in the case of an involuntary dismissal which is not for lack of jurisdiction, the plaintiff is barred from bringing a second action unless the order of dismissal specifies that the dismissal is "without prejudice”. However, the corollary of the rule that any dismissal other than a dismissal for lack of jurisdiction operates as an adjudication on the merits is that a dismissal for lack of jurisdiction does not operate as an adjudication on the merits. Such a dismissal is by its nature "without prejudice”. Indeed, in construing a virtually identical provision in FR Civ P, 41(b), the Federal courts have so held. In Miller v Saxbe, 396 F Supp 1260, 1261 (DDC, 1975), the first suit was dismissed for lack of "subject matter jurisdiction” because plaintiff had failed to comply with a 30-day filing requirement of the Equal Employment Opportunity Act. The court stated that res judicata was inapplicable:
*179"Such a dismissal on jurisdictional grounds is not 'on the merits’ for res judicata purposes and consequently is 'without prejudice’ to a subsequent action raising the same or similar underlying facts if different grounds for jurisdiction are claimed. See F.R.Civ.P. Rule 41(b); IB J. Moore, Federal Practice (2d ed. 1974) ¶ 0.405[5] at 659-61 and n. 15-19; 5 id. ¶ 41.14[1] at 1173-74 * * * .”
Also stating that according to FR Civ P, 41(b) a dismissal for lack of jurisdiction did not operate as a dismissal on the merits were the Federal courts in Williams v Minnesota Mining & Manufacturing Co, 14 FRD 1, 8 (SD Cal, 1953), and Loucke v United States, 21 FRD 305, 309 (SD NY, 1957). Therefore, if in the present case the first dismissal was for "lack of jurisdiction”, it need not necessarily be given res judicata effect.
C. "Lack of Jurisdiction”: Failure to Exhaust Administrative Remedies
The question here, of course, is whether the first dismissal on the basis of failure to exhaust administrative remedies was a "dismissal for lack of jurisdiction”, within the meaning of Rule 504.2. I would answer this question in the affirmative. The Federal courts construe "lack of jurisdiction” dismissals broadly, so as to include most of the situations which in Michigan are grounds for accelerated judgment.3 See Sharp v Two Point Associates, Ltd, 78 Mich App 180, 188; 259 NW2d 416 (1977). In Costello v United States, 365 US 265, 285; 81 S Ct 534; 5 L Ed 2d 551 (1961), the Supreme Court discussed the Rule 41(b) . lack of jurisdiction exception as follows:
*180"We think that petitioner misconceives the scope of this exception from the dismissals under Rule 41(b) which operate as adjudications on the merits unless the court specifies otherwise. It is too narrow a reading of the exception to relate the concept of jurisdiction embodied there to the fundamental jurisdictional defects which render a judgment void and subject to collateral attack, such as lack of jurisdiction over the person or subject matter. We regard the exception as encompassing those dismissals which are based on a plaintiffs failure to comply with a precondition requisite to the Court’s going forward to determine the merits of his substantive claim. Failure to file the affidavit of good cause in a denaturalization proceeding falls within this category.”
The Costello Court went on to read "lack of jurisdiction” to mean any ground which did not go to the merits of the lawsuit, in accord with common law principles of res judicata.
In the case at bar, defendant argues that Costello applies only to nonspecifying dismissals, i.e., those in which the lower court has not specified whether the dismissal is with or without prejudice, as was the case in Costello. The Court in Weissinger v United States, 423 F2d 795, 799 (CA 5, 1970), so read Costello. However, I do not agree that Costello must necessarily be so limited, and would choose not to so limit it here. In the first place, the Weissinger Court stated that the "with prejudice” order which it was considering was "entered after full trial on all issues and with complete findings and conclusions”. 423 F2d at 800. This is clearly not the situation in the present lawsuit, where defendant moved for summary judgment in the first suit, and never defended on the merits. Secondly, the Costello language itself belies defendant’s construction. In Costello, the Court specified that it spoke to "the scope of this *181exception from the dismissals under Rule 41(b) which operate as adjudications on the merits unless the court specifies otherwise.” When this language is read together with that in Rule 41(b) (or GCR 1963, 504.2), it is clear that what the lack of jurisdiction exception refers to is all involuntary dismissals which do not specify that they are "without prejudice”. The dismissal in the case at bar, on the basis of failure to exhaust administrative remedies, was obviously not on the merits of the age discrimination and breach of implied contract claims, and was indeed based on plaintiffs "failure to comply with a precondition requisite to the Court’s going forward to determine the merits of [her] substantive claim”. Costello, supra, 285. Thus, it was a dismissal for "lack of jurisdiction” within the meaning of GCR 1963, 504.2.
Also in support of this conclusion is the language from Michigan cases dealing with exhaustion of remedies. The Administrative Procedures Act (APA), MCLA 24.301; MSA 3.560(201), provides that when a person has exhausted his administrative remedies and is aggrieved by a final decision in a contested case, the decision is subject to direct review in the courts. Michigan Courts have construed this provision as meaning that the circuit court lacks subject matter jurisdiction until a person has exhausted his or her administrative remedies:
" * * * the statute [MCLA 24.301; MSA 3.560(201)] makes it clear that the circuit court’s subject matter jurisdiction in this case depends upon exhaustion of administrative remedies.” International Business Machines Corp v Department of Treasury, 75 Mich App 604, 609; 255 NW2d 702 (1977).
"We conclude that plaintiff National Bank had an adequate administrative remedy in this case and that *182therefore, the circuit court lacked jurisdiction.” Farmers State Bank of Concord v Department of Commerce, Financial Institutions Bureau, 77 Mich App 313, 322; 258 NW2d 496 (1977).
See also, St Paul Fire & Marine Insurance Co v Littky, 60 Mich App 375, 378; 230 NW2d 440 (1975); Hooper v United States, 326 F2d 982, 984-985 (Ct Cl, 1964), cert den, 377 US 977; 84 S Ct 1882; 12 L Ed 2d 746 (1964).
Thus, under the view expressed in the above cases, failure to exhaust administrative remedies is viewed as so serious' that the court is deprived of subject matter jurisdiction. For this reason I do not hesitate to say that failure to exhaust is at least serious enough to come within the "lack of jurisdiction” exception of GCR 1963, 504.2. However, that does not end the inquiry.
D. Res Judicata Effect: Jurisdictional Rulings on Jurisdictional Issue Decided
Even though a judgment made on the grounds that the court lacks jurisdiction is not on the merits and is not conclusive as to the merits, it is conclusive as to what it did actually decide, i.e., the jurisdictional question presented. Restatement, Judgments, § 49, p 195. In Citizen’s Mortgage Corp v Second Avenue Limited Dividend Housing Association, 72 Mich App 1, 4; 248 NW2d 699 (1976), this Court quoted as follows from the Restatement, supra:
" 'b. Effect of judgment as to issues decided. Although, where the judgment for the defendant is not on the merits, the plaintiff is not precluded from maintaining a new action on the same cause of action, he is precluded from relitigating the very question which was litigated in the prior action.’ ”
*183This rule has been applied in many cases to rulings on jurisdiction. Some courts term its effect res judicata, Ripperger v A C Allyn & Co, 113 F2d 332 (CA 2, 1940), cert den, 311 US 695; 61 S Ct 136; 85 L Ed 450 (1940); Loucke v United States, supra, while others state that the first dismissal is conclusive as a direct estoppel on jurisdictional issues actually decided, Miller v Saxbe, supra. Whatever theory is used, the result is the same: the party may not relitigate the jurisdictional issue already litigated and decided in the first lawsuit. Barzin v Selective Service Local Board No. 14, 446 F2d 1382, 1383 (CA 3, 1971); Acree v Air Line Pilots Association, 390 F2d 199, 203 (CA 5, 1968); Davis v Saab-Scania of America, Inc, 133 Vt 317; 339 A2d 456 (1975).
In the conflict of laws area, Michigan cases also hold that the erroneous decision of a court that it has jurisdiction is res judicata. McDonald v McDonald, 74 Mich App 119, 123, fn 2; 253 NW2d 678 (1977); Johnson v Haley, supra, p 416. But what happens when the court which actually has jurisdiction erroneously decides that it lacks jurisdiction? This question is answered in Anno: Res judicata effect of judgment dismissing action, or otherwise denying relief, for lack of jurisdiction or venue, 49 ALR2d 1036, 1039:
"Since a judgment based on lack of jurisdiction of the court over the subject matter or over the defendant or on improper venue is not on the merits, it is obvious that such a judgment does not extinguish the cause of action and does not bar the plaintiff from maintaining another action on the same cause in a court having jurisdiction or in the proper district or county. Where a judgment dismissing an action for lack of jurisdiction is erroneous in that the court, in fact, had jurisdiction, the authorities are divided as to whether the judgment bars the plaintiff from maintaining a second action in an *184appropriate forum. The better view seems to be that, if another appropriate forum is available,20 the former judgment does not preclude the plaintiff from maintaining an action in that forum.
Many cases are cited to support the proposition of footnote 20 in the above annotation. These cases include In re Quinney’s Estate, 287 Mich 329; 283 NW 599 (1939), where the Court stated at pp 338-339:
"While a dismissal on the ground the court has no jurisdiction of the subject-matter is a conclusive determination of want of jurisdiction, it is no adjudication of the merits and will not bar another action for the same cause. 34 C.J. p 795.” (Emphasis added.)
The Quinney Court went on to decide that, despite the rule set forth therein, the probate court’s erroneous ruling that it did not have jurisdiction did not bar the plaintiff from bringing another action in the probate court. I would find that the circumstances in the case at bar are peculiar enough to require a similar holding on our part.
E. Administrative Remedies Exhausted: A Different Jurisdictional Question
The rule that res judicata applies to questions of jurisdiction is inapplicable in several situations. One such situation is where the precise jurisdictional question is different in the second lawsuit than it was in the first. Annot., 49 ALR2d 1036, § 6(b). In United States v Reid, 104 F Supp 260, *185263 (ED Ark, 1952), for example, the Court held that its first dismissal based on invalid service of process was not res judicata on the question of its jurisdiction in the second action, where there was valid service on the defendant:
"With respect to res judicata it is to be pointed out that our order of April 4, 1951 merely quashed the original service on the defendant, which was admittedly invalid; we passed on nothing except the validity of that particular service, and, as indicated, the Government is now relying upon an entirely different service; our holding that the original service was invalid is in no sense res judicata of the validity of the present service or of the jurisdiction of this Court in the present proceeding.”
See also In re Kammerer’s Estate, 8 Wis 2d 494; 99 NW2d 841 (1959). In the case at bar this first exception is applicable because the first dismissal occurred when plaintiff’s case was still pending in the CRC. The jurisdictional question then was whether the court could take cognizance of plaintiff’s claim while plaintiff was at the same time pursuing her administrative remedies. But when plaintiff returned in September, 1975, and filed her second complaint, the jurisdictional question had changed to one of whether or not the circuit court could entertain her claim when the CRC had refused to issue a charge. Because these questions are far from identical, the first determination was not res judicata as to the second complaint.
A second related exception to the application of res judicata is where there has been a change of circumstances, i.e., where "subsequent events occur which create a new legal situation or alter the legal rights or relations of the litigants”. Annot., 49 ALR2d 1036, § 6(c), p 1058. In In re Raseman Estate, 18 Mich App 91, 104-105; 170 NW2d 503 *186(1969), lv den, 385 Mich 780 (1971), this Court applied this exception in a case dealing with maintenance of an insane person:
"Plaintiff has asserted that the order of the probate court dated November 24, 1944, which was not appealed from is res judicata and therefore conclusive on this appeal. The doctrine of res judicata is not immutable. It reflects a policy of law which seeks to end litigation, but it is only a policy, not an absolute rule, and it need not be and has not been applied rigidly without regard to disparate factual situations. Just because the 1944 probate court order was not appealed from and the petition for modification was not filed until 1964 does not mean that unpaid arrearages are not subject to modification. Indeed, the fact that a petition for modification can be entertained at all establishes that the doctrine of res judicata does not apply — if the doctrine applied, no court could modify the 1944 order. The reason why it is subject to modification is the reason why it can be modified as to arrearages, because it operates in futuro as to facts that had not occurred when the order was entered. It is a general rule that res judicata applies only where there has been an adjudication on the merits. The 1944 probate court adjudication on the merits did not constitute an adjudication on the merits of the 1945 or later facts and, hence, did not operate in the nature of res judicata as to later facts which have never been the subject of adjudication so as to prevent modification of the 1944 order as to accrued and unpaid arrearages.”
In the case at bar, as in Raseman, the jurisdictional facts existing when plaintiff filed her second complaint had never been litigated. Just as the statute involved in Raseman permitted modification and was thus antithetical to res judicata, so here the exhaustion doctrine inherently recognizes that at some future time, when plaintiff has exhausted his or her administrative remedies, the *187court will have jurisdiction. The change in circumstances exception has also been applied in cases where the fact existing at the time of the second complaint but not at the time of the first was diversity of citizenship, Ripperger v AC Allyn & Co, 37 F Supp 373, 374 (SD NY, 1940), aff'd, 113 F2d 332 (CA 2, 1940); Gilmer v Grand Rapids, 16 F 708 (WD Mich, 1883), sufficient contacts with the forum state, Myers Motors, Inc v Kaiser-Frazer Sales Corp, 80 F Supp 18, 22 (D Minn, 1948), and residency, Chiotte v Chiotte, 279 SW2d 296, 297 (Ark, 1955). In the case at bar I would find that a change in circumstances took place between the filing of the first and second lawsuits and made the doctrine of res judicata inapplicable.
Defendant argues that plaintiff had not satisfied the trial court’s precondition to the assumption of jurisdiction, because plaintiff had not really exhausted her administrative remedies. There is no support in law or logic for this position. MCLA 24.301; MSA 3.560(201), provides as follows:
"When a person has exhausted all administrative remedies available within an agency, and is aggrieved by a final decision or order in a contested case, whether such decision or order is affirmative or negative in form, the decision or order is subject to direct review, by the courts as provided by law. Exhaustion of administrative remedies does not require the ñling of a motion or application for rehearing or reconsideration unless the agency rules require the ñling before judicial review is sought. A preliminary, procedural or intermediate agency action or ruling is not immediately reviewable, except that the court may grant leave for review of such action if review of the agency’s final decision or order would not provide an adequate remedy.” (Emphasis added.)
The Civil Rights Commission rules do not require *188filing of a motion or application for reconsideration or rehearing:
"Rule 7. (a) A claimant may request of the commission a reconsideration of its refusal to issue a charge. Any party may request a reconsideration of the terms of conciliation. Any such request shall be in writing, state specifically the grounds upon which it is based, and be filed within 30 days after the date of mailing of the notice of disposition of which reconsideration is requested. It shall be filed at any office of the commission by personal delivery or by registered or certified mail, return receipt requested.” Administrative Code, 1970-1971 AACS, R 37.7(a), p 5351. (Emphasis added.)
"Rule 18.(a) Any party or intervener claiming to be aggrieved by a ñnal order of the commission, including without limitation a refusal to issue a charge, may appeal to the circuit court of the state of Michigan having jurisdiction provided by law.” Administrative Code, 1967 AACS, R 37.18(a), p 4084. (Emphasis added.)
Thus, if plaintiff had been required to exhaust any administrative remedies, as the circuit court told her she wras, her task was complete when the commission refused to issue a charge. The circuit court could not incorporate into its decision a requirement of exhaustion that the law does not recognize. As for defendant’s contention that "exhaustion of administrative remedies” includes appeal to circuit court, this is answered by the statute itself, which begins, "When a person has exhausted all administrative remedies available within an agency * * * .” I am not aware that the circuit court is within the Civil Rights Commission. Plaintiff did all that she was "required” to do, and the circuit court erred in dismissing her second complaint on grounds of res judicata and failure to exhaust administrative remedies.
Finally, as to the notation "with prejudice”, *189there is no magic in these words sufficient to turn this ruling — one inherently without prejudice ("Plaintiff must first exhaust her administrative remedies before seeking redress in the Circuit Court”) — into one which bars forever plaintiff’s cause of action. Such a result would be unjust and illogical. See Laude v Cossins, 334 Mich 622; 55 NW2d 123 (1952), where two "with prejudice” dismissals on grounds of lack of probate court jurisdiction were held no bar to the bringing of plaintiff’s action in the appropriate forum, the circuit court. See also Miami Super Cold Co, Inc v Giffin Industries, Inc, 178 So 2d 604, 605 (Fla App, 1965). Presented with a "with prejudice” dismissal on a different set of facts, my decision might well be different. But in the case at bar, where plaintiff merely did what the court told her to do, where defendant was never put to the time and expense of defending against plaintiff’s substantive claims, and where plaintiff’s exhaustion of her administrative remedies meant that the only bar which the court saw to its assumption of jurisdiction had been removed, I would refuse to deny to plaintiff the day in court that she never had.
Repealed by 1976 PA 453, § 804. The provisions of the FEPA have been incorporated into the new Michigan Civil Rights Act, MCLA 37.2101 et seq.; MSA 3.548(101) et seq., effective March 31,1977.
Now MCLA 37.2102; MSA 3.548(102). The Michigan Civil Rights Act specifically allows a civil action in circuit court for violation of its provisions. MCLA 37.2801; MSA 3.548(801). It also provides in MCLA 37.2803; MSA 3.548(803), "This act shall not be construed to diminish the right of a person to direct or immediate legal or equitable remedies in the courts of this state.” The Court in Pompey v General Motors Corporation, infra, based its decision largely on a similar provision in Const 1963, art 5, § 29. Both the FEPA and the Michigan Civil Rights Act forbid discrimination on the basis of age.
Accelerated judgment, not summary judgment, is the proper ground for disposing of a case on the basis of failure to exhaust administrative remedies. See Baker v Detroit, 73 Mich App 67, 71; 250 NW2d 543 (1976).
"20. Of course, if the only available forum has denied relief for lack of jurisdiction of the subject matter, the question is res judicata, even though the judgment is erroneous”. (Emphasis added; footnotes 17-19 omitted.)