Downey v. Charlevoix County Bd. of Road Com'rs

• Decision Date: 03 February 1998
• Docket Number: Docket No. 192948
• Citation: 576 N.W.2d 712,227 Mich.App. 621
• Parties: , 11 NDLR P 374 Charlotte K. DOWNEY, Personal Representative of the Estate of James Bradley Downey, deceased, Plaintiff-Appellant, v. CHARLEVOIX COUNTY BOARD OF COUNTY ROAD COMMISSIONERS, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 712

576 N.W.2d 712

227 Mich.App. 621, 11 NDLR P 374

Charlotte K. DOWNEY, Personal Representative of the Estate of James Bradley Downey, deceased, Plaintiff-Appellant, v. CHARLEVOIX COUNTY BOARD OF COUNTY ROAD COMMISSIONERS Defendant-Appellee.

Docket No. 192948.

Court of Appeals of Michigan.

Submitted Aug. 5, 1997, at Grand Rapids.

Decided Feb. 3, 1998, at 9:10 a.m.

Released for Publication April 30, 1998.

Thompson & O'Neil, P.C. by William J. Brooks, Traverse City, for Plaintiff-Appellant.

Johnson, Rosati, Galica, LaBarge, Aseltyne, Sugameli & Field, P.C. by Marcia L. Howe, Farmington Hills, for Defendant-Appellee.

Before MARK J. CAVANAGH, P.J., and HOLBROOK and JANSEN, JJ.

JANSEN, Judge.

In this age and handicapper's discrimination case, plaintiff, Charlotte K. Downey, appeals as of right from a January 23, 1996, order granting summary disposition in favor of defendant pursuant to MCR 2.116(C)(10). We reverse and remand for further proceedings.

I

Plaintiff's decedent, ¹ James Bradley Downey (hereafter Downey), worked for defendant at the Ironton garage for approximately twenty years. Downey was discharged on September 6, 1994. Before his discharge, he worked as a heavy equipment operator. Apparently, Downey wanted the assignment of "regular" grader operator, however, that assignment went to another employee who was four years older than Downey, but had less seniority. After the assignment was posted, an altercation occurred between Downey and his supervisor. Defendant claimed that it had discharged Downey after an investigation into the incident in which he had physically attacked his supervisor, Tim Parsel, on August 23, 1994. Plaintiff, however, claims that age and handicap discrimination were the real reasons for termination and that Downey was provoked into the altercation with his supervisor.

Defendant moved for summary disposition pursuant to MCR 2.116(C)(10). It argued that, with respect to plaintiff's claim of handicap discrimination, the claim should be dismissed because Downey failed to provide notice of a request for an accommodation for his handicap or, alternatively, that he was not discharged because of his handicap. It also argued that, with respect to the claim of age discrimination, the claim should be dismissed because age was not a determining factor in Downey's discharge. The trial court granted defendant's motion with respect to both counts. The trial court ruled that Downey was discharged because he had assaulted the supervisor and that the supervisor did not provide sufficient provocation. The trial court ruled that there was no reasonable argument that Downey's violence was justifiable or the result of sufficient provocation. It further ruled that because the grader operator assignment went to an employee who was four years older than Downey, it was "difficult" to accept Downey's claim of age discrimination. Ultimately, the trial court ruled that there was "no evidence sufficient in the records ... that creates a genuine issue of material fact," and entered summary disposition in favor of defendant pursuant to MCR 2.116(C)(10).

On appeal, plaintiff argues that the trial court erred in granting defendant's motion for summary disposition. Plaintiff contends that she has created a material factual dispute regarding whether a hostile work environment claim based on age and handicapper's discrimination exists such that summary disposition was improperly granted for defendant. She also contends that there is a material factual dispute regarding whether age was a significant factor in Downey's discharge such that summary disposition was improperly granted.

We review de novo a trial court's ruling on a motion for summary disposition. Harrison v. Olde Financial Corp., 225 Mich.App. 601, 605, 572 N.W.2d 679 (1997). A motion brought under MCR 2.116(C)(10) tests the factual support for the claim. Skinner v. Square D Co., 445 Mich. 153, 161, 516 N.W.2d 475 (1994). The pleadings, affidavits, depositions, admissions, and any other documentary evidence submitted by the parties must be considered by the court when ruling on a motion brought under MCR 2.116(C)(10). MCR 2.116(G)(5). The court is not permitted to assess credibility or to determine facts on a motion for summary disposition. Skinner, supra, p. 161, 516 N.W.2d 475. Rather, the court's task is to review the record evidence, and all reasonable inferences from it, and determine whether a genuine issue of any material fact exists to warrant a trial. Id.

II

A

We first turn to plaintiff's claim of hostile work environment based on age and handicap. In Malan v. General Dynamics Land Systems, Inc., 212 Mich.App. 585, 587, 538 N.W.2d 76 (1995), this Court held that harassment based on any one of the enumerated classifications ² contained in § 202(1)(a) of the Civil Rights Act, M.C.L. § 37.2202(1)(a); M.S.A. § 3.548(202)(1)(a), is actionable. Specifically, this Court held that the Civil Rights Act creates a cause of action for national origin harassment. Malan, supra, p. 586, 538 N.W.2d 76.

We are bound to follow Malan pursuant to MCR 7.215(H), and we would follow it in any event because we believe that Malan correctly held that harassment based on any of the enumerated classifications in § 202(1)(a) is an actionable offense. As noted in Malan, supra, p. 587, 538 N.W.2d 76, the Civil Rights Act seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases. Moreover, Malan is consistent with the overwhelming weight of authority in the federal courts. The federal courts have recognized that harassment based on age is actionable under the Age Discrimination in Employment Act, 29 U.S.C. § 623. Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104 (CA9, 1991); Dunn v. Medina General Hosp., 917 F.Supp. 1185 (N.D.Ohio, 1996). The federal courts have also recognized that handicap harassment is actionable under the Americans with Disabilities Act, Haysman v. Food Lion, Inc., 893 F.Supp. 1092 (S.D.Ga., 1995); Henry v. Guest Services, Inc., 902 F.Supp. 245 (D.D.C., 1995). The fact that handicap is not a listed classification in § 202(1)(a) of the Civil Rights Act is not dispositive, because, like the federal courts, we recognize a claim of handicap harassment or hostile work environment under § 202 of the Handicappers' Civil Rights Act (HCRA), M.C.L. § 37.1202; M.S.A. § 3.550(202).

Therefore, we agree with plaintiff that there is a cause of action for a claim of harassment or hostile work environment based on age and handicap under the respective civil rights acts. Such a holding is consistent with the purpose of the acts and consistent with the holdings of the federal courts. ³ As the federal courts have noted, the civil rights acts prohibit discrimination against an individual with respect to a term, condition, or privilege of employment. Both M.C.L. § 37.2202(1)(a); M.S.A. § 3.548(202)(1)(a) and M.C.L. § 37.1202(1)(b); M.S.A. § 3.550(202)(1)(b) contain the same prohibition. As noted by the United States Supreme Court, the phrase "terms, conditions or privileges of employment" evinces a legislative intent to strike at the entire spectrum of disparate treatment of men and women in employment, which includes requiring people to work in a discriminatorily hostile or abusive environment. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993).

Accordingly, with the rulings of the federal courts and the ruling in Malan in mind, we hold that harassment or hostile work environment based on age and handicap is actionable. Contrary to defendant's argument, this Court's decision in Koester v. Novi, 213 Mich.App. 653, 540 N.W.2d 765 (1995), does not compel a different ruling. In Koester, this Court merely held that gender-biased comments to a female employee concerning pregnancy, career choice, and child rearing are not comments "of a sexual nature" that create a hostile work environment under M.C.L. § 37.2103(i); M.S.A. § 3.548(103)(i), which statute deals specifically with sexual harassment. Therefore, we find no conflict between Malan and Koester, and we conclude that Koester holds only that claims based on sexual harassment must be "of a sexual nature" to be actionable, which is consistent with the wording of the statute.

B

We must next determine whether plaintiff has proved sufficient facts to create a material factual dispute regarding whether there was a hostile work environment based on age and handicap. ⁴ In order to establish a prima facie case of hostile work environment, a plaintiff must prove: (1) the employee belonged to a protected group; (2) the employee was subjected to communication or conduct on the basis of the protected status; (3) the employee was subjected to unwelcome conduct or communication on the basis of the protected status; (4) the unwelcome conduct or communication was intended to, or in fact did, interfere substantially with the employee's employment or created an intimidating, hostile, or offensive work environment; and (5) respondeat superior. See Radtke v. Everett, 442 Mich. 368, 382-383, 501 N.W.2d 155 (1993); Quinto v. Cross & Peters Co., 451 Mich. 358, 368-369, 547 N.W.2d 314 (1996).

With respect to the first element, Downey was forty-five years old at the time of his discharge and he suffered from a depressive disorder, diagnosed in 1988. We disagree with defendant that Downey was not handicapped within the meaning of M.C.L. § 37.1103(e); M.S.A. § 3.550(103)(e). ⁵ The affidavit of Robert Newhouse, M.D., a psychiatrist, was that Downey's depressive disorder was of a nature and magnitude to constitute a handicap. Further, Downey took Prozac for his depressive condition. This mental illness constitutes a handicap within the meaning of the HCRA. See, e.g., Merillat v. Michigan State Univ., 207 Mich.App. 240, 245, 523 N.W.2d 802 (1994) (the defendants' perception of the plaintiff as being mentally unstable fell within the...