Backer v. Wyeth-Ayerst Laboratories

• Decision Date: 15 November 1996
• Docket Number: No. 1:95-CV-814.,1:95-CV-814.
• Citation: 949 F.Supp. 512
• Parties: Penny BACKER, Plaintiff, v. WYETH-AYERST LABORATORIES, Defendant.
• Court: U.S. District Court — Western District of Michigan

949 F.Supp. 512

Penny BACKER, Plaintiff, v. WYETH-AYERST LABORATORIES, Defendant.

No. 1:95-CV-814.

United States District Court, W.D. Michigan, Southern Division.

November 15, 1996.

Randie K. Black, Randie Black Law Offices, Okemos, MI, for plaintiff.

Scott L. Gorland, Judith E. Caliman, Pepper, Hamilton & Scheetz, Detroit, MI, for defendant.

OPINION

QUIST, District Judge.

This matter is before the Court on "Defendant American Home Products Corporation's Motion for Summary Judgment." Wyeth-Ayerst Laboratories is a division of American Home Products Corporation. Jurisdiction in this case is based upon diversity jurisdiction. In Count I of Plaintiffs complaint, Plaintiff alleges a violation of the Michigan Handicapper's Civil Rights Act ("MHCRA"), M.C.L. §§ 37.1101-37.1607. In Count II, Plaintiff alleges constructive discharge. In Count III, Plaintiff alleges intentional infliction of emotional distress. Defendant claims that Plaintiff is not able to establish a prima facie case for any of the claims and now moves the Court for summary judgment on all counts pursuant to Fed.R.Civ.P.56.

Facts

Plaintiff, Penny Backer, began work with Wyeth-Ayerst Laboratories in October of 1991. Plaintiff worked as a senior general clerk in the scheduling unit department of the production control division. Plaintiffs job responsibilities consisted primarily of maintaining production schedules, accumulating information for monthly production reports, duplicating and distributing schedules, and providing back-up relief within the division.

Plaintiff has a history of allergies to molds and pollens. In September of 1992, Plaintiff reported that she was allergic to a co-worker's perfume and that her exposure to the perfume caused burning in her nose and lungs. Plaintiff alleges that her respiratory ailments became worse and that she only experienced these ailments while at work. In late 1993, Plaintiff began complaining that she could smell chlorine and cleaning chemicals in the office and that this caused her to experience respiratory problems. Plaintiff requested that she be provided with a breathing mask, a respirator, and/or an air cleaner. Plaintiff further requested that she be moved to an enclosed back office or relocated to Defendant's TG & Y store or Defendant's Lansing Warehouse. Plaintiff also requested air quality testing be done in the office building.

Plaintiff consulted frequently with the staff nurse and doctor at the Employee Health Services Office. They provided her with advice and medication. They also consulted with her private doctors, the office safety coordinator, and Plaintiff's supervisor regarding Plaintiffs respiratory ailments. Additionally, they provided Plaintiff's personal physician with a list of cleaning chemicals used in the plant. Moreover, Defendant relocated Plaintiff to other cubicles within the same building, provided Plaintiff with dust masks to wear while at work, provided Plaintiff with a clean air machine, relieved Plaintiff from some of her job duties when she was feeling ill, offered her time to lie down and rest when needed, asked other co-workers to refrain from wearing perfume, provided paid time-off for smoking cessation programs and weekly allergy shots, provided air quality testing, and provided paid medical leave.

Plaintiff went on medical leave on February 7, 1994. Dr. Kelly, Plaintiffs personal physician, concluded that Plaintiff had a permanent respiratory condition with allergic responses to a variety of respiratory irritants and that she was not fit to work in employment settings where there are volatile chemicals and other respiratory irritants. Six months after she began her medical leave, Plaintiffs employment was terminated pursuant to company policy.

In September of 1994, Plaintiff began working part-time for the Social Security Administration. Plaintiff experienced allergic reactions at that office and, because of this, used most of her sick and vacation time. Plaintiff voluntarily left this position in January of 1995 and accepted a full-time position with the City of Lansing. The City of Lansing terminated Plaintiff in May of 1995 for excessive tardiness. Plaintiff then filed workers' compensation claims with Defendant and the City of Lansing. She obtained settlements from both of these former employers. In May of 1996, Plaintiff was awarded Social Security Disability benefits for being totally disabled.

Plaintiff argues that Defendant knew of her allergies and asthma but failed to accommodate her respiratory problems. Defendant claims that it reasonably accommodated Plaintiff's respiratory problems; therefore, Defendant maintains that Plaintiff is unable to establish a prima facie case of handicap discrimination under the MHCRA. Defendant further maintains that Plaintiff cannot establish a case of constructive discharge or intentional infliction of emotional distress.

Discussion

1. Legal Standard

Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. The rule requires that the disputed facts be material. Material facts are facts which are defined by substantive law and are necessary to apply the law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A dispute over trivial facts which are not necessary in order to apply the substantive law does not prevent the granting of a motion for summary judgment. Id. at 248, 106 S.Ct. at 2510. The rule also requires the dispute to be genuine. A dispute is genuine if a reasonable jury could return judgment for the non-moving party. Id. This standard requires the non-moving party to present more than a scintilla of evidence to defeat the motion. Id. at 251, 106 S.Ct. at 2511 (citing Schuylkill and Dauphin Improvement Co. v. Munson, 14 Wall. 442, 448, 20 L.Ed. 867 (1872)). The summary judgment standard mirrors the standard for a directed verdict. Id. at 250, 106 S.Ct. at 2511. The only difference between the two is procedural. Id. Summary judgment is made based on documentary evidence before trial, and directed verdict is made based on evidence submitted at trial. Id.

A moving party who does not have the burden of proof at trial may properly support a motion for summary judgment by showing the court that there is no evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). If the motion is so supported, the party opposing the motion must then demonstrate with "concrete evidence" that there is a genuine issue of material fact for trial. Id.; Frank v. D'Ambrosi, 4 F.3d 1378, 1384 (6th Cir.1993). The court must draw all inferences in a light most favorable to the non-moving party, but the court may grant summary judgment when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Agristor Financial Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir.1992) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)).

2. Michigan Handicapper's Civil Rights Act Claim

The MHCRA was enacted in part to address the plight of the handicapped in the work force. See generally Stewart R. Hakola & Joseph F. Lavey II, Forty-Three Million Strong: An Overview of Civil Rights Protections for Persons with Disabilities, 70 Mich.B.J. 548 (1991); Cynthia Lynne Pike, Note, Assessing the Impact: The 1990 Amendments to the Michigan Handicappers' Civil Rights Act and the Americans With Disabilities Act, 37 Wayne L.R. 1903 (1991). The MHCRA requires employers to make reasonable accommodations for employees with job-related disabilities, unless the accommodations impose undue hardship upon the employer. See, Hakola & Lavey, supra, at 551; Pike, supra, at 1908. Id. Thus, under Section 37.1102(2) of the MHCRA, an employer "shall accommodate a handicapper for purposes of employment ... unless the person demonstrates that the accommodation would impose an undue hardship."

In order to prevail on a MHCRA claim, a plaintiff must first establish a prima facie case of handicap discrimination.¹ In order to establish a prima facie case of handicap discrimination, a plaintiff must show: 1) she is "handicapped" as defined by the MHCRA, 2) her handicap is unrelated to her ability to perform the duties of her particular job, and 3) she has been discriminated against in one of the ways set forth in the statute. Hall v. Hackley Hosp., 210 Mich. App. 48, 53-54, 532 N.W.2d 893, 896 (1995) (citing Merillat v. Michigan State Univ., 207 Mich.App. 240, 245, 523 N.W.2d 802, 805 (1994)). See also Brown v. Sprint, 891 F.Supp. 396, 399 (E.D.Mich.1995); Sanchez v. Lagoudakis, 217 Mich.App. 535, 539, 552 N.W.2d 472, 476 (1996).

Section 37.1103(e) defines "handicap" as "[a] determinable physical or mental characteristic of an individual, which may result from disease, injury, congenital condition of birth, or functional disorder, if the characteristic ... substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual's ability to perform the duties of a particular job or position."

This Court finds that Plaintiff has shown that her respiratory ailments are determinable characteristics that substantially limit her ability to breathe and to work. See Garza v. Abbott Labs., 940 F.Supp. 1227, 1234-39 (N.D.Ill.1996) (analyzing Americans With Disabilities Act claim and status of plaintiff as "disabled"). However, the inquiry does not end here; Plaintiff must show that this "characteristic" is unrelated to her ability to perform the duties of her job.

Section 37.1103(l) defines "unrelated to the individual's ability" as "with or without accommodation, an individual's handicap does not prevent the individual from ... performing the duties of a particular job or...