Cunningham v. DEARBORN BD. OF EDUC.

• Decision Date: 18 September 2001
• Docket Number: Docket No. 216170.
• Citation: 633 N.W.2d 481,246 Mich. App. 621
• Parties: Denise CUNNINGHAM, Plaintiff-Appellant, v. DEARBORN BOARD OF EDUCATION, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

633 N.W.2d 481

246 Mich. App. 621

Denise CUNNINGHAM, Plaintiff-Appellant, v. DEARBORN BOARD OF EDUCATION, Defendant-Appellee.

Docket No. 216170.

Court of Appeals of Michigan.

Submitted December 12, 2000, at Detroit.

Decided July 6, 2001, at 9:05 a.m.

Released for Publication September 18, 2001.

Wahl & Rivers, P.C. (by Beth M. Rivers), Detroit, for the plaintiff.

Plunkett & Cooney, P.C. (by Robert G. Kamenec and Suzanne P. Bartos), Detroit, for the defendant.

Before GRIFFIN, P.J., and HOLBROOK, Jr., and MURPHY, JJ.

RICHARD ALLEN GRIFFIN, Presiding Judge.

Plaintiff appeals as of right an order granting summary disposition in favor of defendant pursuant to MCR 2.116(C)(10). We affirm.

I

Since 1991, plaintiff has worked for defendant as a Custodian C. At all relevant times, defendant had promulgated and distributed a job description for its Custodial C (Custodian C) position. The "performance responsibilities" contained in the Custodian C job description are as follows:

1. Perform cleaning duties as outlined by the Building Engineer including but not limited to: classrooms, rest rooms, shower and locker rooms, offices and other areas of the school building.

2. Perform minor repairs to school fixtures such as doors, light fixtures, window shades, desks and other furniture, etc.

3. Perform outside cleaning of building and grounds as outlined by the Building Engineer such as snow shoveling, grass cutting, window cleaning and policing grounds and parking area.

4. Assist in preparing of athletic fields.

5. Operate mechanized custodial equipment such as vacuums, hand scrubber, auto scrubber, carpet shampooers, etc.

6. Move and rearrange school furniture as directed by the Building Engineer.

7. Lock and unlock building to provide security and entry of groups using the building.

8. Maintain manual and mechanized custodial equipment and report needed repairs to Building Engineer.

9. Maintain supplies and reports needs to Engineer.

10. Remove trash to outside containers.

11. Replace burned out lamps using step ladders, extension poles or scaffolding.

12. Work cooperatively with other employees in performance of project cleaning.

13. Report cleaning or safety problems to Building Engineer.

14. Scrub and refinish floors during the school year to maintain protection of hard surfaces and minimize the need for floor stripping during summer cleaning. [Emphasis added.]

The above duties of a Custodian C employee were the subject of a union contract negotiated between defendant and the Dearborn Federation of School Employees.

In her deposition, plaintiff explained the day-to-day duties of a Custodian C position as follows:

Q. Do you know what the difference is between a custodial A and custodial C?

A. Yes, I do.

Q. What is the difference?

A. No heavy lifting for custodial A, they normally don't throw out their own trash, no ladder climbing, no running of any dangerous machinery.

Q. What would the heavy lifting be, what type of heavy lifting would there be?

A. Moving of heavy desks, furniture, filing cabinets, supplies.

Q. Why would you have to get on a ladder, what would that entail?

A. Changing a light bulb.

* * *

Q. What were your duties at Woodworth when you arrived there in '94?

A. I did the whole first floor hall, I did every entrance in and out of the building, large gym, two gang bathroom [sic], three classrooms, boys lockeroom [sic] and some other duties I can't remember.

* * *

Q. At Woodworth, would your duties change in the summer months?

A. Yes, it would.

Q. What would you do during the summer?

A. Stripping, wax floors, moving the furniture, cleaning them, change the light bulbs, dusting, major cleaning.

Q. Basically the same thing you would do at McDonald?

A. Yes.

Q. And since you got at—went to Woodworth, is there any change in your duties as of today?

A. I have a different area.

Q. Okay. What would be different about your area, just a different portion of building?

A. Correct.

Q. The same functions.

A. Same functions.

In 1995, plaintiff became pregnant with her second child. Because of her pregnancy, on March 22, 1995, plaintiff's personal physician restricted her employment activities to no lifting of more than fifteen to twenty pounds, no ladder climbing, and no use of an industrial buffer. Shortly after plaintiff presented defendant with her written work restrictions, defendant's supervisor of human resources wrote a letter to plaintiff that stated:

Dear Ms. Cunningham:

As I told you on Monday, March 27, 1995, you cannot currently perform your Custodial C duties due to the restrictions your doctor has placed you under because of your pregnancy.

Since you have exhausted all your sick, personal business, and vacation banks, you must apply for leave under the Family and Medical Leave Act. Please complete the appropriate forms as soon as possible and return them to the Department of Human Resources.

Thereafter, defendant placed plaintiff on extended health leave that was later converted to family medical leave. After the birth of her child, plaintiff returned to work as a Custodian C on November 30, 1995.

It is undisputed that defendant had a collective bargaining agreement with the Dearborn Federation of School Employees, of which plaintiff, as a full-time custodian, was a member. Pursuant to an agreement between defendant and the union, defendant had a "favored work" program. Under the agreement, and by policy of defendant, "an employee who was either eligible for or is receiving Worker's Compensation benefits is eligible for inclusion in the Favored Work Program," under which that employee will be permitted to work within the parameters of the medical restrictions placed on the employee. It is uncontested that because plaintiff was not eligible for worker's compensation for her pregnancy, she was not offered favored work.

Plaintiff subsequently filed a complaint in the circuit court, alleging that defendant's decision to suspend plaintiff's employment as a Custodian C because of her medical restrictions constituted sex discrimination in violation of Michigan's Civil Rights Act, M.C.L. § 37.2101 et seq. In her claim based on "disparate treatment,"¹ plaintiff maintained she was treated differently than alleged similarly situated individuals because defendant permits favored work for job-related disabilities when an employee is eligible for or is receiving worker's compensation benefits, while defendant does not afford favored work for non-job-related disabilities such as pregnancy.

Following discovery,² defendant moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that plaintiff was unable to establish a prima facie case of sex discrimination based on her pregnancy because she could present no evidence that she was treated differently than any other employees with non-work-related conditions. Specifically, defendant contended that its decision not to allow plaintiff to continue working in a favored work capacity was based on defendant's district-wide policy, contained in the collective bargaining agreement with plaintiff's union and uniformly applied to men and women, that an employee is not given favored work unless that employee is eligible for worker's compensation by virtue of a work-related injury, which plaintiff concededly did not have. The trial court ultimately agreed with defendant's arguments and granted summary disposition in its favor. Plaintiff now appeals.

II

In her brief on appeal, plaintiff concedes "there are no Michigan cases on point" but relies on conflicting federal authorities to argue that illegal sex discrimination based on pregnancy occurs if a defendant/employer does not treat pregnancy as a job-related disability eligible for favored work. However, we agree with the circuit court and hold that defendant's differing treatment for job-related disabilities and nonjob-related disabilities including pregnancy does not violate the Michigan Civil Rights Act. Because plaintiff's cause of action is not based on title VII of the Civil Rights Act of 1964, 42 USC 2000e et seq. as amended in 1978 by the Pregnancy Discrimination Act (PDA), we express no opinion regarding the dissimilar federal statute and its conflicting interpretations.

The Michigan Civil Rights Act provides:

An employer shall not do any of the following:

Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of ... sex.... [MCL 37.2202(1)(a).]

In response to the United States Supreme Court's decision in General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), the Michigan Legislature amended the Civil Rights Act and the United States Congress amended title VII of the Civil Rights Act of 1964. Both the Michigan Legislature and the Congress reacted to remedy the Supreme Court's decision, which held that title VII of the Civil Rights Act did not prohibit discrimination based on pregnancy. See, generally, Koester v. City of Novi, 458 Mich. 1, 10-12, 580 N.W.2d 835 (1998). However, the substance of the state and federal amendments were different. Michigan's amendment was a straightforward redefinition of the term "sex discrimination," which was clarified to include pregnancy and pregnancy-related conditions:

"Sex" includes, but is not limited to, pregnancy, childbirth, or a medical condition related to pregnancy or childbirth that does not include nontherapeutic abortion not intended to save the life of the mother. [MCL 37.2201(d) (1978 PA 153, effective May 22, 1978).]³

By contrast, the 1978 congressional amendment of title VII of the Civil Rights Act was more than a clarification. Unlike the 1978 amendment of the Michigan Civil Rights Act, the federal amendment, the PDA, not only stated that sex discrimination included discrimination based on pregnancy and pregnancy-related conditions but further provided "women affected by...