Means v. Jowa Sec. Services

• Decision Date: 05 June 1989
• Docket Number: Docket No. 104361
• Citation: Means v. Jowa Sec. Services, 440 N.W.2d 23, 176 Mich.App. 466 (Mich. App. 1989)
• Parties: Mark A. MEANS, Plaintiff-Appellee, v. JOWA SECURITY SERVICES, Defendant-Appellant. 176 Mich.App. 466, 440 N.W.2d 23, 50 Fair Empl.Prac.Cas. (BNA) 1809
• Court: Court of Appeal of Michigan — District of US

Page 23

440 N.W.2d 23

Mark A. MEANS, Plaintiff-Appellee, v. JOWA SECURITY SERVICES, Defendant-Appellant.

Docket No. 104361.

176 Mich.App. 466, 440 N.W.2d 23,

50 Fair Empl.Prac.Cas. (BNA) 1809

Court of Appeals of Michigan.

Submitted Jan. 5, 1989.

Decided April 17, 1989.

Released for Publication June 5, 1989.

[176 MICHAPP 468] Siemion, Huckabay, Bodary, Padilla & Morganti, P.C. by Raymond W. Morganti, Detroit, for plaintiff-appellee.

Peter P. Cobbs, Detroit, for defendant-appellant.

Before J.H. GILLIS, P.J., and SHEPHERD and SAWYER, JJ.

SHEPHERD, Judge.

In this action under the Handicappers' Civil Rights Act, M.C.L. Sec. 37.1101 et seq.; M.S.A. Sec. 3.550(101) et seq., defendant, Jowa Security Services, appeals as of right from a jury award of $38,900 in favor of plaintiff and from the trial court's denial of its motions for a directed verdict, a judgment notwithstanding the verdict, or a new trial. We affirm. This case specifically involves the issue of whether defendant could refuse to hire plaintiff because of a physical condition which required plaintiff to grow a beard, where a job description or "qualification" of the job required that employees be clean-shaven, except for mustaches. In a broader sense, the issue is whether an employer may avoid the application of the act by [176 MICHAPP 469] making a condition that is a handicap under the act a disqualification for employment.

The trial record reveals that plaintiff suffered from pseudofolliculitis barbae, a condition characterized by ingrown beard stubble which causes inflammation, abscesses, cysts and scars. Three doctors testified that the only way for plaintiff to alleviate the problem was to grow a beard.

Plaintiff in fact cultivated a beard and, except for one month, maintained the beard throughout his various employments preceding his application for employment with the defendant. His prior positions included work as a plain-clothes and uniformed police officer with the Detroit Police Department during 1977 and 1978 and several uniformed security positions after he was laid off by the Detroit Police Department.

At the time plaintiff applied for employment with defendant in 1984, plaintiff was working at a hospital as a uniformed security guard. Plaintiff applied for the employment because he heard about security jobs opening up at the 36th District Court and that laid-off Detroit police officers were being given preference in hiring. The defendant had a contract with the City of Detroit to supply uniformed security guards for the courtrooms. Plaintiff filled out an application at defendant's office and, a few days later, was told to report to the police academy for a three-week training program. Plaintiff quit his job at the hospital and began training at the police academy. He continued to maintain his beard throughout the training program. There were fifteen to twenty people in his class; there were seven full-time and several part-time positions available. Plaintiff ranked sixth in his class, but was not placed into the available positions because he would not shave. The "uniform and appearance" section (hereafter referred [176 MICHAPP 470] to as the grooming code) contained in the standard operating procedure manual for the 36th District Court security officers required that employees be clean-shaven, except for mustaches, and that beards shall not be worn.

Plaintiff went to see Brenda Geissendamner, a vice-president for defendant. He attempted to give her a letter from his doctor explaining his skin condition, but she refused to read the letter and told plaintiff to shave or "get out the door." Plaintiff testified that he then contacted another of defendant's vice-presidents, Leon Turner, who also refused to look at the letter and told plaintiff that he would have to shave. Geissendamner testified that being clean-shaven was a qualification and condition of the job; Turner testified that the grooming code was important because clients want security guards to have a military look. Defendant's president, John Coursey, testified that seventy-five percent of the security job is the image the guard projects and that a neat and professional appearance will deter crime.

Plaintiff testified that he had no source of income after being denied placement as a courtroom security guard. Plaintiff filed a complaint with the Michigan Civil Rights Commission, which resulted in defendant offering a plain-clothes position, which plaintiff turned down because the job required a car and plaintiff did not have one and could not afford to purchase one. Plaintiff testified that for about four months after he was fired by defendant he was unable to pay his monthly bills, that his credit rating suffered, that he was forced to borrow money, and that this caused embarrassment and humiliation.

Plaintiff sought damages exceeding $100,000 for defendant's refusal to place him as a courtroom security guard; the jury returned a verdict of $38,900. Defendant's [176 MICHAPP 471] post-trial motion for relief, brought on several grounds, was denied.

On appeal, defendant first contends that the trial court should have directed a verdict in its favor. Defendant argues that plaintiff failed to present sufficient evidence that he was a handicapper within the meaning of the act. Defendant raised this issue by moving for a directed verdict at trial and later moving for judgment notwithstanding the verdict.

When reviewing a trial court's denial of a motion for directed verdict or judgment notwithstanding the verdict, the testimony and all legitimate inferences that may be drawn are examined in a light most favorable to the nonmoving party. If there are material issues of fact upon which reasonable minds might differ, the matter is one properly submitted to the jury. If reasonable jurors could disagree, neither the trial court nor this Court may substitute its judgment for that of the jury. In re Leone Estate, 168 Mich.App. 321, 324, 423 N.W.2d 652 (1988).

To prevail on a claim for handicap discrimination, a plaintiff must prove that the employer violated a provision of the act. The relevant provision, M.C.L. Sec. 37.1202; M.S.A. Sec. 3.550(202), states:

"(1) An employer shall not:

"(a) Fail or refuse to hire, recruit, or promote an individual because of a handicap that is unrelated to the individual's ability to perform the duties of a particular job or position." (Emphasis added.)

"Handicap" is defined in M.C.L. Sec. 37.1103(b); M.S.A. Sec. 3.550(103)(b) as:

"a determinable physical or mental characteristic of an individual or a history of the characteristic [176 MICHAPP 472] which may result from disease, injury, congenital condition of birth, or functional disorder which characteristic:

"(i) ... is unrelated to the individual's ability to perform the duties of a particular job or position, or is unrelated to the individual's qualifications for employment or promotion."

Hence, for an employee to prevail two requirements must be met: (1) the employer's failure to hire or place must have been "because of a handicap" and (2) the handicap in question must be unrelated to the individual's ability to perform the duties of a particular job. Carden v. General Motors Corp., 156 Mich.App. 202, 212, 401 N.W.2d 273 (1986), lv. den. 428 Mich. 891 (1987); Bogue v. Teledyne Continental Motors, 136 Mich.App. 374, 377, 356 N.W.2d 25 (1984), lv. den. 421 Mich. 862 (1985). The first requirement is determined in the light of the employer's intent, since it looks to the reasons for the employer's decision not to hire or place. By contrast, the second requirement does not require an inquiry into an employer's intent, since intent is irrelevant to the determination of whether a handicap, defined as a physical or mental characteristic in Sec. 103(b), is related or unrelated to the ability to perform the job. Bogue, supra, 136 Mich.App. pp. 377-378, 356 N.W.2d 25.

This Court has held that pseudofolliculitis barbae, the condition which the evidence unequivocally showed plaintiff suffered from, is a physical characteristic within the ambit of the definition of a "handicap" found in Sec. 103(b). Shelby Twp. Fire Dep't v. Shields, 115 Mich.App. 98, 103, 320 N.W.2d 306 (1982). Hence, the only issue here is under the second requirement of the two-prong test which must be satisfied to prevail in a handicapper action, that being whether this physical characteristic[176 MICHAPP 473] was unrelated to plaintiff's ability to perform the job as a security guard.

Viewed most favorably to the plaintiff, there is overwhelming evidence that plaintiff was physically able to carry out the duties of a security guard despite the fact that his skin condition required him to maintain a beard. The fact that defendant established a written requirement of "no beard" does not bind the court or the trier of fact in determining whether the handicap was related to plaintiff's ability to perform the job. Since reasonable minds could find that plaintiff was fully able to perform the duties of the job with a beard, the question of whether defendant had a handicap unrelated to the job was properly submitted to the jury.

With regard to the first requirement, defendant cites Bogue, supra, for the proposition that plaintiff failed in his burden to show that defendant's decision not to place plaintiff in a court security guard position was "because of a handicap." Specifically, defendant argues that plaintiff did not offer rebuttal testimony or respond to defendant's stated reasons of "policy and qualifications" as the basis for refusing to place plaintiff in the position. We disagree.

The testimony of defendant's agents did indicate that the grooming code was necessary to deter crime by creating an air of authority and was necessary for the good reputation of the company. This reasonably implies that a legitimate nondiscriminatory reason existed for defendant's decision not to place plaintiff, inasmuch as he did...