Koester v. City of Novi, Docket No. 105508

• Decision Date: 17 June 1998
• Docket Number: Docket No. 105508,No. 3,3
• Parties: Karen KOESTER, Plaintiff-Appellant, v. CITY OF NOVI and Lee Begole, Defendants-Appellees. Calendar
• Court: Michigan Supreme Court

Page 835

580 N.W.2d 835

458 Mich. 1

Karen KOESTER, Plaintiff-Appellant, v. CITY OF NOVI and Lee Begole, Defendants-Appellees.

Docket No. 105508.

Calendar No. 3.

Supreme Court of Michigan.

Argued Jan. 6, 1998.

Decided June 17, 1998.

Akhtar & Sucher by Jamil Akhtar, Birmingham, for plaintiff-appellant.

Cummings, McClorey, Davis & Acho, P.C. by Joseph Nimako, Livonia, for defendants-appellees.

Kelman, Loria, Simpson, Will, Harvey & Thompson by Ann Currey Thompson, Detroit, amicus curiae, for Michigan Trial Lawyers Association.

Opinion

MICHAEL F. CAVANAGH, Justice.

In this case we are asked to determine two things: (1) whether plaintiff has stated a claim under the Handicappers' Civil Rights Act (HCRA), M.C.L. § 37.1101 et seq.; M.S.A. § 3.550(101) et seq., and (2) whether comments and harassing conduct relating to a woman's pregnancy can give rise to a claim for sexual harassment as defined by the Michigan Civil Rights Act, M.C.L. § 37.2101 et seq.; M.S.A. § 3.548(101) et seq.

We hold that pregnancy, standing alone, is not a handicap under the HCRA because it is not a substantial limitation of a major life activity. We also hold that harassing comments and conduct relating to a woman's pregnancy may give rise to a claim of sexual harassment as defined by the CRA.

I. FACTS

The facts in this case were presented by the Court of Appeals as follows:

In 1981, defendant City of Novi employed plaintiff as a police officer assigned to road patrol. In 1984, the city adopted a city-wide no-light-duty policy, which prohibited disabled employees from returning to work until able to perform their regular duties. The no-light-duty policy applied to all city employees. A disabled city employee unable to perform the requirements of the job was permitted to use sick, vacation, and other leave time to remain on the payroll. Once an employee's accumulated leave time was exhausted, the employee would be placed on an unpaid leave of absence. Benefits would be discontinued at this point unless the employee paid for them.

Plaintiff met with Craig Klaver, the assistant city manager in charge of personnel, to discuss pregnancy leave in 1986. Klaver explained to plaintiff that the above policies applied to pregnancy, just like any other condition that rendered an employee unable to perform her job duties. Klaver asked plaintiff, "[H]ow can I give you more for an intentional act than for an officer who is accidentally injured?" Klaver later explained that he meant the no-light-duty policy would certainly apply to someone who made a conscious decision to raise a family, if it applied to someone who was accidentally injured in an accident. He also informed plaintiff that no official maternity leave policy existed. Plaintiff testified that Klaver then said, "You should have thought about having kids before you made your career choice." Klaver, however, denied saying this. Klaver testified that no exceptions were ever made to the no-light-duty policy. He recalled one instance where an officer went to a training program while disabled; however, the officer did so without the city's knowledge and was admonished not to do so again. Another officer, Ron Roy, was permitted to come to work wearing an orthopedic shoe after foot surgery. Roy testified, though, that the shoe did not inhibit his ability to perform his job duties.

Plaintiff became pregnant in early 1988. She was the first pregnant officer in the history of the city. Plaintiff met with defendant Chief Lee Begole to discuss her condition. Plaintiff testified that Begole told her that he believed women should stay home with their children for two or three years and should not work while pregnant.

In March 1988, after plaintiff experienced some problems early in her pregnancy, plaintiff's doctor restricted her from lifting more than twenty-five pounds and instructed her to avoid trauma to the abdominal area. Plaintiff admitted that these restrictions prevented her from fulfilling the physically demanding job requirements of a road patrol officer. Consequently, plaintiff took a leave of absence from work. Plaintiff testified that she was ordered off work by Lieutenant Starnes; Starnes and Deputy Chief Richard Faulkner stated that plaintiff voluntarily left work. Plaintiff's sick, vacation, and personal time was exhausted in July 1988, after which she went on unpaid leave. Her long-term disability payments began in September 1988 and terminated in December 1988.

Shortly after going on leave, plaintiff saw an opening posted for a crime prevention officer, a more sedentary job than that of a road patrol officer. Plaintiff requested the position, but it ultimately went to Officer Robert Gatt. Even Gatt had suggested that plaintiff hold the position during her pregnancy, but the city refused, stating that it would be too costly to train plaintiff for the position, only to have her leave it a few months later.

Plaintiff's due date was late October or early November 1988. In order to be assured of a day shift upon her return to work, plaintiff testified that she put in a bid for the day shift in October 1988 while she was still on leave. At that time, plaintiff had the fifth-highest seniority of all the road patrol officers. Because of her seniority, plaintiff would have been assured her choice of shifts had she been working. Plaintiff stated that the practice when senior officers returned from disability was to bump other officers to give the senior officers their choice of shift. Lieutenant Thomas Hesse, who replaced Starnes, told plaintiff, however, that he would put her on the night shift or any shift where she was needed. Plaintiff ultimately bid for, and received, a day shift spot in April 1989, the next time bids were accepted for shifts.

Upon returning to work in April 1989, plaintiff testified that she was singled out for failing to write enough moving violations, for using the restrooms at the fire station and Twelve Oaks Mall, and for failing to have her badge number on her uniform pants. Plaintiff asserted that she had never been disciplined or reprimanded before she became pregnant. Defendants denied treating plaintiff any differently than other officers, and pointed out that all the officers were eventually instructed to spend less time socializing at the mall and the fire department, and to place their badge numbers on their uniforms.

Plaintiff was issued a written reprimand for an incident that occurred in July 1990 during the city's "Fifties Festival." Plaintiff testified that, as a senior officer, she was asked to volunteer to work overtime during the festival. Because of her seniority, the collective bargaining agreement permitted plaintiff to decline the extra work. Plaintiff initially agreed to work, but when she could not find a baby-sitter, she called the station and declined the overtime. Defendants' witnesses, however, stated that plaintiff violated a direct order to work the festival. Plaintiff filed a grievance with the union about her treatment in this matter, but the grievance was ultimately dropped.

Soon after this incident, plaintiff discovered that she was pregnant again, and notified Sergeant Gerald Burnham. Sergeant Burnham responded, "Gee thanks." He explained at trial that he meant that just as the department had gotten over the problems and turmoil of plaintiff's first pregnancy plaintiff became pregnant again. Plaintiff informed Lieutenant Hesse that she would need new uniforms because she was outgrowing her old ones. Plaintiff recommended that she receive uniform pants with an elastic panel in the stomach, a uniform blouse to be worn over that, and a shoulder holster for her gun and other equipment. Deputy Chief Faulkner vetoed her idea for safety reasons; he explained that if plaintiff were to wear her shirttails untucked, an assailant could easily grab her. He also believed that shoulder holsters were not safe. Hesse told plaintiff that the department would not supply her with pants every time she grew bigger. He offered to ask the male officers of various sizes to lend their pants to plaintiff through her pregnancy. Plaintiff refused this offer. Plaintiff was instead issued pants with a 34-inch waist and 45-inch hips, and was told she could "grow into" them.

In September 1990, plaintiff's doctor again restricted plaintiff's activities. Plaintiff admitted that the restrictions rendered her unable to fulfill the duties of road patrol officer. At this same time, a temporary assistant court officer position was posted. Plaintiff asked Hesse if she could be transferred to that position during her pregnancy, because the job involved mostly desk work and did not require her to wear a uniform. Hesse told her that the collective bargaining agreement did not permit the department to post temporary positions and that the posting had been a mistake. Plaintiff was not permitted to fill that position, and subsequently left work for the remainder of her second pregnancy at the end of September.

In January or February 1991, Office Vier Wirwille filled the assistant court officer position on a temporary, emergency basis to help with the enormous backlog. Contrary to plaintiff's testimony, Wirwille stated that the job was not sedentary--a large part of the job involved handling prisoners, including transporting them to and from court, and restraining them within the court building. The job was then reposted as a permanent position. All officers interested in the position were required to take both a written and an oral examination; they were also given points for seniority. The job was to be awarded to the officer who received the highest combined score. Plaintiff applied for it, and took the oral part of the examination. She was unable to take the written half of the examination, however, because it was scheduled two days after she gave birth in April. Julie Cote, the employee who scheduled the written examination, testified that she was...