Lamoria v. Health Care & Retirement Corp.
| Citation | 584 N.W.2d 589,230 Mich.App. 801 |
| Decision Date | 10 July 1998 |
| Docket Number | Docket No. 199795 |
| Parties | Barbara Ann LAMORIA, Plaintiff-Appellant, v. HEALTH CARE & RETIREMENT CORPORATION, Sun Valley Manor, Inc. & Marilyn K. Martin, Defendants-Appellees. . Released |
| Court | Court of Appeal of Michigan — District of US |
Before FITZGERALD, P.J., and O'CONNELL and WHITBECK, JJ.
Lamoria v. Health Care & Retirement Corporation, Docket No. 199795. The Court orders that a special panel shall be convened pursuant to MCR 7.215(H) to resolve the conflict between this case and Rymar v. Michigan Bell Telephone Co., 190 Mich.App.504, 476 N.W.2d 451 (1991).
The Court further orders that the opinion in this case released July 10, 1998, is hereby vacated.
The appellant may file a supplemental brief within 28 days of the clerk's certification of this order. Appellee may file a supplemental brief within 21 days of service of appellant's brief. Nine copies must be filed with the Clerk of the Court.
Plaintiff Barbara Lamoria 1 appeals as of right the trial court's grant of summary disposition. Lamoria filed this action after she was discharged from her employment at defendant Sun Valley Manor, Inc., a retirement home owned by defendant Health Care & Retirement Corporation (HCR). Defendant Marilyn K. Martin was, at the time of Lamoria's discharge, the administrator of Sun Valley. In pertinent part, Lamoria alleges that her discharge (1) violated the prohibition of the state Civil Rights Act, M.C.L. § 37.2101 et seq.; M.S.A. § 3.548(101) et seq., against weight and age discrimination, (2) violated the Handicappers' Civil Rights Act, M.C.L. § 37.1202(1)(b); M.S.A. § 3.550(202)(1)(b), with respect to handicap discrimination related to an injury that Lamoria suffered in the course of her employment, and (3) constituted illegal retaliation for plaintiff's seeking worker's compensation benefits. Lamoria advanced additional claims on which the trial court also granted summary disposition to defendants, but Lamoria does not challenge the grant of summary disposition on those claims. In contrast, defendants assert that Lamoria was discharged in accordance with HCR's policy of discharging employees who do not return to work after having been on a medical leave of absence for six months. We reverse the grant of summary disposition with respect to the claims at issue in this appeal and remand for further proceedings consistent with this opinion. But for MCR 7.215(H), we would affirm the trial court's decision with respect to issue IV. However, as we will discuss more fully in this opinion, MCR 7.215(H) requires us to reverse with regard to issue IV.
Lamoria has been a registered nurse since 1959 and was employed in that capacity (including time spent on leave) for nearly twenty years at Sun Valley, from September 9, 1975, until July 7, 1994. However, Lamoria stated in an affidavit 2 that she was not officially notified that her employment had been terminated until October 1994. Lamoria alleged in her complaint that, at the time her employment was terminated, she was fifty-five years old, 5' 7" tall and weighed about 240 pounds and that, previously, she had weighed as much as 311 pounds. Lamoria stated that she began working at Sun Valley as a staff nurse and was promoted in 1991 to the position of "Nurse (Unit) Manager." According to Lamoria, her "last evaluation in August, 1993, stated that [she] had a 'demonstrated loyalty' to Sun Valley Manor and that [she] had the potential for promotion within HCR."
Ruth Wilcox, who also had worked at Sun Valley, testified in her deposition that she had the opportunity to review Lamoria's work or watch her interact with patients. When asked for her opinion of Lamoria's work performance as a nurse, Wilcox testified:
I respect her. She has good standards. She's honest and credible and trustworthy. She expressed and demonstrated a lot of behaviors that are consistent with a high degree of caring. I would describe her as dedicated.
Wilcox did not recall having any problems with Lamoria during the time that Wilcox was serving as the internal administrator or director of nursing at Sun Valley. Lamoria stated in her affidavit that Martin was hired as the administrator of Sun Valley by Dan Livy, a regional manager for HCR in December 1993.
Lamoria suffered a knee injury as a result of a fall at Sun Valley on August 9, 1993, during the course of her employment. Lamoria went on a medical leave from her employment in January 1994.
Faith Hall indicated in her affidavit that she worked at Sun Valley as a "Nurse Consultant" when Martin was hired as the administrator for Sun Valley. Hall stated that, in her first meeting with Martin at Sun Valley, Martin proclaimed that she was going to "clean house" and that she intended to get rid of the employees who had been at Sun Valley the longest because they "would be the hardest to change." Hall also stated that "Martin said that HCR sought her out for this position and brought her in specifically to clean out the older employees." According to Hall, "Martin made comments about immediately terminating the director of nursing, several dietary department personnel, and some of the older nurses." Hall stated that Martin and Livy referred to a "hit list" of employees whom they sought to terminate and that "in several instances [they] would 'target' an employee for termination, then begin to build a case for termination or instead force the person to resign." Hall also stated that Martin and Livy "made critical and harsh remarks in [Hall's] presence about the weight of some Sun Valley Manor personnel, including Annette Smith and Barbara Lamoria, in a manner that suggested to [Hall] that they intended to terminate people who they perceived as overweight."
Brenda LaVigne, who was employed by Sun Valley as a social worker, stated that, while she was at Sun Valley, Martin became the administrator. LaVigne made the following statements about Martin in her affidavit:
4. Marilyn Martin threatened to fire me on several occasions without justification.
5. Shortly after she started in December, 1993, Martin began to terminate several of the department heads[,] including nursing supervisors. These employees were then replaced with younger employees.
6. Among the department heads or supervisors fired by Martin or forced to resign were Annette Smith, Director of Nursing; Sharon DeWhale, Director of Nursing; Donna Hair, Social Worker; Dennis Fox, Nurse Supervisor; and Belda Denzer, Nurse Supervisor.
* * *
8. Martin did not like over-weight people. Martin made disparaging comments about heavy people, including Sun Valley Manor employees.
9. Annette Smith, Donna Hair and Barbara Lamoria were all over-weight by Martin's standards, and all were fired or forced to resign while Martin was Administrator.
According to LaVigne, "Martin hired younger, more attractive people to enhance the 'corporate image' of HCR and to replace the people that Martin wanted to terminate." LaVigne also stated that Martin knew that Lamoria needed surgery to repair her knee and that Martin would be off work for a long time rehabilitating her knee. According to LaVigne, Martin did not want HCR to pay for the cost of this surgery or rehabilitation.
Annette Smith-Jones indicated in her affidavit that she was employed as the director of nursing when Martin was hired as the administrator. According to Smith-Jones, Martin along with Livy "almost immediately began trying to fire [Smith-Jones] from [her] job." Smith-Jones stated that, at meetings, "Martin often stated how she had no use for certain people, targeting in particular some of the nurse unit managers and African-American licensed practical nurses."
Defendants stress a provision of the "HCR Employee Handbook" regarding medical leaves that includes the statement, "Normally, a Medical Leave of Absence with extensions may not exceed six months." However, Lamoria stated that she went to Sun Valley each month from February to August 1994 to complete the necessary forms to extend her leave of absence "for another month while HCR delayed my surgery." Lamoria further stated that no one advised her during any of these visits that her leave would expire at some point or that she had to return to work by a certain date or face termination. Each time, Lamoria filled out a form on which she stated that her leave of absence was "work related" and that her estimated date of return to work was "undetermined." Lamoria stated that, each time, Martin approved the leave form without modification. Further, according to Lamoria, neither Martin nor HCR ever stated on the form that the leave would expire at some point, although there is a space on the form to designate the end of a leave period. Lamoria also stated that she visited Sun Valley about ten times during her leave period to complete various paperwork and that she was given no notice of her impending termination during those visits. 3
Kenneth Distler, M.D., an orthopedic surgeon, stated in an affidavit that he performed an arthroscopic procedure on Lamoria on January 10, 1994. The costs associated with this procedure, as well as benefits for partial wage loss and medical bills, were paid by ITT Hartford, which administered worker's compensation claims for HCR. However, Dr. Distler stated that he thereafter determined that Lamoria's left knee was not responding to treatment and that a total knee replacement was needed to restore her knee to "functionality." Dr. Distler stated that, in his opinion, Lamoria's problem with her knee was caused by degenerative arthritis that was aggravated by the August 1993 injury.
According to Dr. Distler, he requested authorization from Lamoria's employer to have the cost of the surgery paid under an insurance policy covering work-related injuries "as the cause of [Lamoria's] condition was at least partially related to a fall [Lamoria] had...
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