Gravitte v. Mitsubishi Semiconductor America, Inc.

• Decision Date: 06 April 1993
• Docket Number: No. 9114SC967,9114SC967
• Citation: 428 S.E.2d 254,109 N.C.App. 466
• Court: North Carolina Court of Appeals
• Parties: , 62 Empl. Prac. Dec. P 42,477, 8 IER Cases 1405, 2 A.D. Cases 669, 3 NDLR P 339 Brenda GRAVITTE, Plaintiff, v. MITSUBISHI SEMICONDUCTOR AMERICA, INC., Defendant.

Page 254

428 S.E.2d 254

109 N.C.App. 466, 62 Empl. Prac. Dec. P 42,477,

8 IER Cases 1405, 2 A.D. Cases 669, 3

NDLR P 339

Brenda GRAVITTE, Plaintiff, v. MITSUBISHI SEMICONDUCTOR AMERICA, INC., Defendant.

No. 9114SC967.

Court of Appeals of North Carolina.

April 6, 1993.

McCreary & Read by Daniel F. Read, Durham, for plaintiff-appellant.

Poyner & Spruill by Cecil W. Harrison, Jr. and Laura Broughton Russell, Raleigh, for defendant-appellee.

JOHN, Judge.

Plaintiff appeals from summary judgment dismissing her claims against defendant for violation of G.S. § 168A-1 et seq. (the "North Carolina Handicapped Persons Protection Act") and for wrongful discharge. We affirm the trial court.

The pleadings, depositions, answers to interrogatories, affidavits, and other materials before the trial court indicate the following:

While working for defendant in 1988, plaintiff sustained a back injury and subsequently took several leaves of absence. During her absence, plaintiff received worker's compensation benefits and defendant paid her medical bills. According to plaintiff, defendant "put me on leave until their doctor, the physical therapist, and my doctor agreed that it was okay for me to come back."

By letter dated 20 March 1990, Dr. Peter Bronec (plaintiff's physician) advised defendant that plaintiff could return to work if certain restrictions were followed. In pertinent part his letter provides:

Brenda Gravitte is suffering from chronic musculoligamentous strain of the lumbar spine which is also associated with mild degenerative disease o[f] the lumbar spine. This is usually the result of excessive stress to the lower lumbar region as is encountered with heavy lifting and repetitive bending at the waist. She is able to do well as long as she stays within certain activity restrictions. Specifically, I have recommended that she not lift more than 40 pounds, avoid repetitive bending at the waist, and avoid prolonged sitting or standing in one place.... I expect her to remain under these restrictions permanently. As long as she can remain within these restrictions, I see no reason why she cannot work.

....

It is my understanding that there is an aspect of her current job which requires more lifting than the restrictions. This seems to have been giving her the most trouble. I understand ... that this weight could be broken up into smaller weights. However this has apparently caused some discord among the other employees, therefore Brenda has felt compelled to lift the entire weight. If this problem cannot be rectified then she would not be able to continue performing that job. If there is no other job currently available under these guidelines, than [sic] it might be appropriate to place her on medical leave until such time that a satisfactory job becomes available. I do not feel that any length of medical leave will allow her to return to a job which exceeds these restrictions as she has proven in the past.

On 6 April 1990 plaintiff returned to her position as an Operator in defendant's Plating Department. Before doing so, plaintiff, as well as Sheila Barnes, her supervisor, and E.L. Fricke, defendant's human relations supervisor, signed a "Memorandum of Understanding" which provided inter alia that plaintiff's return was "contingent upon [her] compliance with the stipulations as set down by Dr. Peter Bronec" and listed several "restrictions and conditions" which comport with those set forth in the physician's letter.

Plaintiff thereafter sought transfer to other positions, but was told there were no openings. On 18 May 1990 she resigned. In her letter of resignation plaintiff stated:

It is with regret that I am turning in my two weeks' notice. As you and human resources are aware and have been, the medical problems that I have had in plating [sic]. After coming back from medical leave this last time I was informed that modifications were made in plating to accom[mo]date my situation with working in the plating department. The only modifications were two temporary people were added, only one remains. One was discharged 4-26-90. With the amount of work that we have it's hard for the other operator to stop what she's doing and do the heavy part of my job. Also if I lift one magazine at the time to load the oven or carry it ... to plating the increased amount of twisting at the waist gives me a lot of pain in my back. I've discussed this with Dr. Bronec and he has advised me that if the problems with this particular job cannot be rectified then if the company does not see fit to put me in another job that is not so strenuous on me that I should seek employment else where [sic]. As I have stated I've been through channels and ask[ed] for something else but have been told there is nothing else in the plant for me to do. I had planned to stay with MSAI until retirement, being as I have been employed here 5 years [on] May 13, 1990. But my health will not permit me to remain in this job, and the company says there's nothing else that I can do.

Plaintiff contends the trial court erred by granting defendant's motion for summary judgment. Under Rule 56(c), N.C. Rules of Civil Procedure, summary judgment should be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." The party moving for summary judgment bears the burden of establishing the lack of any triable issue, Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 414 S.E.2d 339 (1992), and may meet this burden by (1) proving that an essential element of the opposing party's claim is nonexistent; (2) showing through discovery that the opposing party cannot produce evidence to support an essential element; or (3) showing that the opposing party cannot surmount an affirmative defense. Roumillat at 63, 414 S.E.2d at 342.

I.

In her first claim, brought under the North Carolina Handicapped Persons Protection Act, G.S. § 168A-1, et seq. [hereinafter the Act], plaintiff alleges that she is a "qualified handicapped person" within the meaning of the Act and that defendant failed to make reasonable accommodation to her handicap in violation of G.S. § 168A-4.

The question of whether one is a "qualified handicapped person" under the Act must be preceded by a determination that one is a "handicapped person." G.S. § 168A-3(9). The Act defines a "handicapped person" as "any person who (i) has a physical or mental impairment which substantially limits one or more major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment." G.S. § 168A-3(4) (emphasis added). "Major life activities" are defined as "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, and learning." G.S. § 168A-3(4)b.

In Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 388 S.E.2d 134 (1990), the North Carolina Supreme Court recently considered what constitutes a "major life activity" under the Act. In Burgess, the plaintiff was discharged from his position as a short order cook after testing positive for the Human Immunodeficiency Virus (HIV), the agent currently recognized as responsible for Acquired Immune Deficiency Syndrome (AIDS). Although the plaintiff was asymptomatic for the AIDS disease itself, he nevertheless contended that, because he was discharged due to his affliction, he was regarded as having an impairment that limited a major life activity, "working." In upholding the trial court's grant of defendant's motion to dismiss made pursuant to Rule 12(b)(6), N.C. Rules of Civil Procedure, the Burgess Court noted that the Act is narrower in scope than the federal act which specifically encompasses "working". Burgess at 213-214, 388 S.E.2d at 138-139. "As an asymptomatic carrier of HIV, plaintiff has failed to show that he has any condition that would substantially limit his ability to perform any of the physical or mental tasks listed in the ... A...