Chmielewski v. Xermac, Inc., Docket No. 106499

CourtSupreme Court of Michigan
Citation580 N.W.2d 817,457 Mich. 593
Docket NumberDocket No. 106499,No. 15,15
Parties, 8 A.D. Cases 1455 Gary P. CHMIELEWSKI, Plaintiff-Appellant, v. XERMAC, INC., a Michigan Corporation Defendant-Appellee, Calendar
Decision Date09 June 1998

Page 817

580 N.W.2d 817
457 Mich. 593, 8 A.D. Cases 1455
Gary P. CHMIELEWSKI, Plaintiff-Appellant,
XERMAC, INC., a Michigan Corporation Defendant-Appellee,
Docket No. 106499.
Calendar No. 15.
Supreme Court of Michigan.
Argued Jan. 7, 1998.
Decided June 9, 1998.

Page 818

[457 Mich. 595] Malley & Fett, P.C. by James K. Fett and Marla A. Linderman, Ann Arbor, for plaintiff-appellant.

Kerr, Russell & Weber, P.L.C. by Daniel G. Beyer and Joseph K. Grekin, Detroit, for defendant-appellee.

Stewart R. Hakola, Lansing, Mary J. Michalak, and Gayle C. Rosen, Livonia, amicus curiae, for Michigan Protection & Advocacy Service.

MALLETT, Chief Justice.

This Handicappers' Civil Rights Act 1 suit involves the question whether, in considering if a person has a condition that meets the act's definition of "handicap," the trier of fact should assess the individual without the benefit of medication or other mitigating measures, or if it should assess the individual's condition as it presently exists with the benefit of such measures. The act requires that to qualify as having a "handicap" for purposes of coming within the act's protection, an individual must have a determinable physical or mental characteristic that substantially limits a major life activity. Plaintiff, who underwent a liver transplant and is dependent on antirejection medication, argues that the trial court erred in refusing to give the jury a special instruction to the effect that it should consider his condition without the benefit of his [457 Mich. 596] antirejection medication. Because we disagree and find that the requested instruction contravenes the plain language of the statute, we affirm the Court of Appeals affirmance of the jury verdict for the defendant. We also affirm the Court of Appeals holding that the trial court did not err in admitting evidence of the plaintiff's alcoholism and of the defendant's economic condition.


Facts and Proceedings

The plaintiff began working as a salesperson for defendant Xermac, a supplier of sophisticated electronic machinery, in the fall of 1985. His duties also included demonstrating and installing machinery. Plaintiff is an alcoholic, although his alcoholism apparently had little or no effect on his ability to perform his job functions. 2 His alcoholism did,

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however, have an effect on his liver. In 1988, plaintiff learned that he had cirrhosis of the liver and underwent a lifesaving liver transplant.

He returned to his job in December, 1989, after a six-month medical leave of absence. On January 29, 1990, he signed a sales agreement, in which he agreed [457 Mich. 597] to a decrease in his sales territory from a multistate region to an exclusive right for sales in Michigan, an increase in his commission rate for sales, a car allowance, and sales quotas. While he had periodically signed similar agreements while with Xermac, this was apparently the first time the company had included sales quotas. When he signed the document, the plaintiff added his own comment indicating his concern about meeting the sales quotas. 3 The plaintiff alleged at trial that his supervisors also began to criticize his work for the first time during the period after his return. In June, 1990, the defendant terminated the plaintiff's employment, citing his failure to meet the sales quotas delineated in the January, 1990, agreement.

The plaintiff brought this employment discrimination suit and later added a claim for wrongful discharge pursuant to Toussaint v. Blue Cross & Blue Shield, 408 Mich. 579, 292 N.W.2d 880 (1980). The defendant moved for summary disposition on both claims. The trial court, finding that plaintiff was an employee at will, dismissed the Toussaint claim. The court allowed the discrimination claim to go forward, finding that there were material issues of fact regarding whether the plaintiff came within the protection of the Handicappers' Civil Rights Act.

The plaintiff's theory at trial was that the defendant employer terminated him in violation of the HCRA to avoid continued health insurance premium increases caused by the liver transplant and his need to take costly antirejection medication for the rest of his life. [457 Mich. 598] The plaintiff testified at trial that the plant manager, John Purrett, visited him at his home while on medical leave and informed him that Xermac's president, Pete Schmitt, wanted to terminate him because of the increased medical insurance costs. 4 Mr. Donald Shaver, Xermac's general manager and the plaintiff's immediate supervisor, also testified that at several meetings he and Mr. Schmitt had discussed the matter of the plaintiff's medical bills contributing to the company's increased insurance costs. 5

The defendant countered plaintiff's HCRA suit by arguing (1) that the plaintiff does not come within the HCRA's protection because he is not handicapped, and (2) that the plaintiff was not terminated because of an alleged handicap, but because of economic necessity. Regarding the first argument, the defendant pursued two lines of defense. First, the act requires that to be handicapped one must be substantially limited in a major life activity. M.C.L. § 37.1103(e)(i)(A); M.S.A. § 3.550(103)(e)(i)(A). The defendant argued that since the lifesaving operation, the plaintiff has no limitation in any life activities and consequently cannot claim [457 Mich. 599] handicapped

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status. 6 Second, the defendant points out that the HCRA excludes from the definition of handicap, conditions caused by the use of alcohol that prevent an individual from performing the duties of his job. M.C.L. § 37.1103(f)(ii); M.S.A. § 3.550(103)(f)(ii). The defendant argued that because the plaintiff's alcoholism necessitated the liver transplant, any claimed handicap flowing from the liver transplant falls outside the act's protection.

During the trial, the plaintiff sought to exclude evidence relating to his alcoholism and cirrhosis. He argued that it was not relevant because it did not prevent him from performing his job functions and that even if it was relevant, its prejudice outweighed any probative value. The trial court disagreed and denied the plaintiff's motion.

The plaintiff also sought to exclude evidence regarding the defendant's economic condition, arguing that the defendant was attempting to assert an economic-necessity defense and that because it did not raise this affirmative defense during discovery or in any responsive pleadings, it was waived. The trial court also denied this motion. It found that evidence of the defendant's economic condition was relevant to disproving a required element of plaintiff's prima facie discrimination case because the evidence tended to disprove that he was terminated because of a handicap.

During closing argument, the attorneys for the plaintiff and the defendant focused the jurors' attention on whether the plaintiff, for purposes of meeting [457 Mich. 600] the HCRA's definition of handicap, should be viewed with or without his antirejection medication. The plaintiff's attorney argued that the law requires that the plaintiff's condition be considered without the benefit of his medication and that, because he would die if he did not take his medicine, his condition met the HCRA's requirement of substantially limiting a major life activity. 7 Conversely, the defense argued that the law required that the plaintiff's condition be viewed as it presently existed, i.e., with the benefit of his medication.

Before closing argument commenced, the plaintiff requested a special jury instruction regarding the effect of mitigating measures, such as medication, on an individual's handicapped status. The proposed instruction was as follows:

A person that has a determinable physical [characteristic] which substantially limits one or more life activities is handicapped even if the determinable physical condition is controlled with medication or medical care.

The trial court refused to give the instruction, concluding that it was more appropriate to simply instruct the jury in the language of the act, without distinguishing between the plaintiff's premedicated and postmedicated states. During deliberations, the jury sent a note to the trial judge inquiring about the relevance of the plaintiff's dependence on medication. [457 Mich. 601] The court refused to comment further on the issue and instructed the jurors to rely on the evidence presented and on the instructions already given. The jury returned a general verdict for the defendant. 8

The Court of Appeals affirmed, rejecting the plaintiff's arguments that the trial court erred in failing to give the proposed special jury instruction and in allowing evidence regarding plaintiff's alcoholism and defendant's

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economic condition. We granted leave to appeal in an unlimited grant order. 9


The HCRA prohibits discrimination against individuals because of their handicapped status. The purpose of the act is to mandate "the employment of the handicapped to the fullest extent reasonably possible." Allen v. SEMTA, 132 Mich.App. 533, 537-538, 349 N.W.2d 204 (1984). The act is remedial, and, as a remedial act, it is to be liberally construed by the courts. See Chandler v. Dowell Schlumberger Inc., 456 Mich. 395, 398, 572 N.W.2d 210 (1998); Allen, supra. Further, in interpreting provisions of the HCRA, analogous federal precedents are persuasive, although not necessarily binding. Robson v. General Motors Corp., 137 Mich.App.[457 Mich. 602] 650, 357 N.W.2d 919 (1984), rev'd on other grounds 427 Mich. 505, 398 N.W.2d 368 (1986). Federal courts have similarly noted that analysis of claims under the HCRA largely parallels analysis under the federal Americans with Disability Act. Hamlin v. Flint Charter Twp., 942 F.Supp. 1129, 1136 (E.D.Mich., 1996); Fritz v. Mascotech Automotive Systems Group, Inc., 914 F.Supp. 1481 (E.D.Mich., 1996).

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