Jesson v. General Telephone Co. of Michigan

• Decision Date: 10 April 1990
• Docket Number: Docket No. 114257
• Citation: 452 N.W.2d 836,182 Mich.App. 430,52 Fair Empl.Prac.Cas. (BNA) 1102
• Parties: Signe JESSON, Plaintiff-Appellant, v. GENERAL TELEPHONE COMPANY OF MICHIGAN, a Michigan corporation, Defendant-Appellee. 182 Mich.App. 430, 452 N.W.2d 836, 52 Fair Empl.Prac.Cas. (BNA) 1102
• Court: Court of Appeal of Michigan — District of US

Page 836

452 N.W.2d 836

Signe JESSON, Plaintiff-Appellant, v. GENERAL TELEPHONE COMPANY OF MICHIGAN, a Michigan

corporation, Defendant-Appellee.

Docket No. 114257.

182 Mich.App. 430, 452 N.W.2d 836,

52 Fair Empl.Prac.Cas. (BNA) 1102

Court of Appeals of Michigan.

Submitted Jan. 9, 1990.

Decided Feb. 21, 1990.

Released for Publication April 10, 1990.

[182 MICHAPP 431] Timothy J. Bott Law Offices, P.C. (by Timothy J. Bott and Karen M. Spencer), Muskegon, for plaintiff-appellant.

David C. Lee, Westfield, Ind., for defendant-appellee.

Before MURPHY, P.J., and HOOD and NEFF, JJ.

PER CURIAM.

Plaintiff appeals by leave granted from a December 9, 1988, opinion and order of the Muskegon Circuit Court affirming the district court's decision granting defendant summary disposition pursuant to MCR 2.116(C)(10). Judgment in defendant's favor was based upon a finding that plaintiff's blurred vision was related to her ability to perform her job. Therefore, her claim was not covered by the Handicappers' Civil Rights Act (HCRA), M.C.L. Sec. 37.1101 et seq.; M.S.A. Sec. 3.550(101) et seq. We reverse.

Plaintiff began her employment with defendant in February, 1978. Plaintiff worked as an operator which required her to read information from the screen of a cathode-ray tube. In 1981, plaintiff began experiencing several minor health problems including blurred vision. In 1982, plaintiff was diagnosed as suffering from multiple sclerosis (MS). Plaintiff continued to work in her position from 1982 to 1985. While plaintiff missed some work [182 MICHAPP 432] during this period due to the occurrence of MS symptoms, she also had many absences unrelated to the MS.

In September, 1985, plaintiff's MS recurred and she experienced further blurred vision. As a result, plaintiff missed two weeks of work. Shortly after plaintiff's return, defendant informed her that she had the following options: (1) taking a medical leave of absence without pay; (2) reclassification to work she was capable of performing; or (3) termination. Plaintiff chose termination and subsequently filed suit against defendant alleging discrimination in violation of the HCRA.

I

Plaintiff first argues that she presented documentary evidence establishing factual issues regarding whether her condition was unrelated to her ability to perform her job. Therefore, summary disposition was inappropriate. We agree.

Summary disposition was granted pursuant to MCR 2.116(C)(10). The party opposing a motion under this court rule has the burden of demonstrating that a genuine issue of disputed fact exists. Dumas v. Auto Club Ins. Ass'n, 168 Mich.App. 619, 626, 425 N.W.2d 480 (1988). The party may not rest upon mere allegations or denials in the pleadings, but must, by documentary evidence, set forth specific facts showing that there is a genuine issue for trial. Metropolitan Life Ins. Co. v. Reist, 167 Mich.App. 112, 118, 421 N.W.2d 592 (1988), lv. den. 431 Mich. 877 (1988). However, courts are liberal in finding the existence of factual issues. St. Paul Fire & Marine Ins. Co. v. Quintana, 165 Mich.App. 719, 722, 419 N.W.2d 60 (1988), lv. den. 430 Mich. 885 (1988).

In reviewing such a motion, the court must [182 MICHAPP 433] consider the pleadings, affidavits, depositions, admissions and other documentary evidence available to it. Dumas, supra, 168 Mich.App. p. 626, 425 N.W.2d 480. The court must give the benefit of reasonable doubt to the nonmovant and determine whether a record could be developed which would leave open an issue upon which reasonable minds could differ. Petaja v. Guck, 178 Mich.App. 577, 578, 444 N.W.2d 209 (1989). All inferences are to be drawn in favor of the nonmovant, and before judgment may be granted, the court must be satisfied that it is impossible for the claim asserted to be supported by evidence at trial. Id., pp. 578-579, 444 N.W.2d 209.

The HCRA provides in pertinent part:

An employer shall not:

* * * * * * Discharge or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment, because of a handicap that is unrelated to the individual's ability to perform the duties of a particular job or position. [M.C.L. Sec. 37.1202(1)(b); M.S.A. Sec. 3.550(202)(1)(b). Emphasis added.]

A disability related to an individual's ability to perform the duties of a job is not a handicap within the meaning of the HCRA. Carr v. General Motors Corp., 425 Mich. 313, 321-322, 389 N.W.2d 686 (1986), reh. den. 426 Mich. 1231, 393 N.W.2d 873 (1986).

In the instant case, deposition testimony from plaintiff's doctor indicated that plaintiff's vision problems were an underlying symptom of her MS and occur only sporadically. At many times, plaintiff had "functional" vision. The doctor indicated that based upon his last examination of plaintiff (September 1, 1987), her vision was within "normal limits" and it had been his experience that [182 MICHAPP 434] use of the eyes would not aggravate or worsen MS-related vision problems. The doctor also stated that individuals with MS have periods where symptoms flare up (attacks) and periods where the symptoms dissipate. The doctor had experiences with some individuals who had only one attack and then experienced no other problems for the remainder of their lives. While the doctor could not state with specificity how long plaintiff's remission periods could last, the doctor testified that plaintiff had attacks in 1983 and in 1985, but was able to work and had good vision between these times.

In addition, it appears that plaintiff only missed a total of four weeks (two weeks in 1983 and two weeks in 1985) because of her MS and the related vision problems. In 1985, plaintiff's doctor released her to work without restrictions. We do not believe that the doctor's suggestion that plaintiff do clerical work emphatically meant that the doctor believed plaintiff could not continue...