Michalski v. Bar-Levav

• Decision Date: 01 May 2001
• Docket Number: Docket No. 114107, Calendar No. 1.
• Citation: 625 N.W.2d 754,463 Mich. 723
• Parties: Claudia MICHALSKI and Michael Michalski, Plaintiffs-Appellees, v. Reuven BAR-LEVAV, M.D. and Dr. Reuven-Bar Levav & Associates, P.C., Defendants-Appellants.
• Court: Michigan Supreme Court

625 N.W.2d 754

463 Mich. 723

Claudia MICHALSKI and Michael Michalski, Plaintiffs-Appellees, v. Reuven BAR-LEVAV, M.D. and Dr. Reuven-Bar Levav & Associates, P.C., Defendants-Appellants.

Docket No. 114107, Calendar No. 1.

Supreme Court of Michigan.

Argued January 16, 2000.

Decided May 1, 2001.

Gary A. Kozma, Detroit, MI, for the plaintiffs-appellees.

John A. Zick, Farmington Hills, MI, for the defendants-appellants.

Kienbaum, Opperwall, Hardy & Pelton, P.L.C. by Thomas G. Kienbaum, Theodore R. Opperwall, Noel D. Massie, Birmingham, MI, amici curiae for Blue Cross Blue Shield of Michigan.

Clark Hill, P.L.C., by Duane L. Tarnacki, F.R. Damm, and Mary C. Dirkes, Detroit, MI, amici curiae for Michigan Manufacturers Association.

Opinion

WEAVER, J.

Following a motion for summary disposition brought pursuant to MCR 2.116(C)(10), plaintiff's Handicappers' Civil Rights Act claim was dismissed by the circuit court.¹ The Court of Appeals reversed. The issue before this Court is whether the Court of Appeals properly concluded that plaintiff presented sufficient evidence to create a question of fact with respect to whether defendant regarded her as having a determinable physical or mental characteristic that substantially limited one or more of her major life activities. We hold that plaintiff did not present sufficient evidence to create such a question, and we reverse the judgment of the Court of Appeals on this issue.

I

On September 1, 1995, plaintiff signed an employment contract with defendant to begin work as an executive secretary on September 11, 1995.² On September 4, 1995, plaintiff experienced numbness and tingling on her left side, which persisted for four days. She was seen by her family doctor, who referred her to Dr. Green, a neurologist. Plaintiff was able to begin work as scheduled. On September 23, 1995, plaintiff saw Dr. Green, who told her he suspected multiple sclerosis, but was unable to make a positive diagnosis at that time. Plaintiff testified at her deposition that she told defendant and others at the office about this tentative diagnosis. Plaintiff maintains that, after she revealed her condition, defendant undertook a course of harassment, which she attributed to his perception of her medical condition.³

Dr. Green saw plaintiff again on October 28, 1995. At this time, plaintiff had no symptoms of multiple sclerosis, and Dr. Green indicated on her medical record that she was "doing fine, feels great." Plaintiff continued to work without incident until December 28, 1995, when she left work, experiencing a loss of vision in one eye. She was seen by Dr. Green, who diagnosed multiple sclerosis. She was hospitalized for three days, and her vision improved after treatment. However, she did not return to work.

Plaintiff brought this action alleging a violation of the Handicappers' Civil Rights Act (HCRA) and a claim for intentional infliction of emotional distress.⁴ After discovery, defendant moved again for summary disposition pursuant to MCR 2.116(C)(10).⁵ The circuit court granted the motion, concluding:

[T]here is no evidence that the condition that Plaintiff was perceived to have was a condition which substantially limits one or more for [sic] major life activities. And no evidence to suggest that the Defendant had any knowledge that one or more of the major life activities was limited.

On January 26, 1999, the Court of Appeals issued a two-to-one decision affirming the dismissal of the intentional infliction of emotional distress count, but reversing the dismissal of plaintiff's handicap discrimination claim because it believed that plaintiff had presented sufficient evidence to establish a prima facie case of handicap discrimination.⁶ Relying on Sanchez v. Lagoudakis,⁷ plaintiff argued that one could find that her condition was a handicap as defined by the statute because the HCRA prohibits discrimination, even when an individual does not exhibit symptoms of a handicap. A majority of the Court of Appeals agreed.

Noting that under Sanchez, the focus is on the employer's conduct and belief or intent, and not merely on the employee's condition, the majority reasoned that the mere fact that plaintiff was symptom free should not preclude her cause of action. The Court of Appeals explained that an "individual with multiple sclerosis can lead a normal life until the next exacerbation, which occurs with varying frequency and degree." Similarly, individuals with handicaps such as epilepsy and asthma may have periods of time where they are symptom free. Although plaintiff was not definitively diagnosed with multiple sclerosis, the Court of Appeals reasoned that applying Sanchez, in which the defendant based his employment decision on rumors that the plaintiff had AIDS, there was sufficient evidence to establish that in the present case, defendant may have regarded plaintiff as handicapped. The Court of Appeals noted that plaintiff's deposition testimony established that she informed defendant from the beginning of her employment that her doctors suspected she had multiple sclerosis. Further, plaintiff periodically took some time off during September and October 1995 to undergo testing for multiple sclerosis and to receive treatment to lessen the side effects of some of the testing procedures. Therefore, the Court of Appeals concluded that the trial court had erred in granting summary disposition in defendant's favor.

Judge Whitbeck dissented. His dissent focused on the fact that the definition of "handicap" was altered by a 1990 amendment to the HCRA⁸ to require that the physical or mental characteristic in question substantially limit one or more major life activities of the individual. The version of the statute in effect at the time of the events in Sanchez did not include this requirement; thus, it was improper for the majority to rely on that case as support for its conclusion. The dissent reasoned that, under the applicable version of the HCRA, the plain language of the statute required defendant to perceive plaintiff as having a characteristic that substantially limited a major life activity. Because plaintiff did not present any evidence that defendant regarded her as having a condition that substantially impaired a major life activity, the dissent concluded that summary disposition was properly granted.

This Court granted leave to appeal. 461 Mich. 1020, 611 N.W.2d 798 (2000).

II

A motion for summary disposition brought pursuant to MCR 2.116(C)(10) tests the factual support of a plaintiff's claim and is subject to de novo review. Smith v. Globe Life Ins. Co., 460 Mich. 446, 454, 597 N.W.2d 28 (1999). In reviewing a motion for summary disposition under MCR 2.116(C)(10), the court considers the pleadings, affidavits, and other documentary evidence filed in the action or submitted by the parties in the light most favorable to the nonmoving party. The motion is properly granted if the documentary evidence presented shows that there is no genuine issue with respect to any material fact and the moving party is therefore entitled to judgment as a matter of law.

The HCRA provides that "[a]n employer shall not ... [d]ischarge or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment, because of a handicap[⁹] that is unrelated to the individual's ability to perform the duties of a particular job or position." MCL 37.1202(1)(b); MSA 3.550(202)(1)(b). To establish a prima facie case of handicap discrimination, a plaintiff must demonstrate that (1) he is handicapped as defined by the HCRA, (2) the handicap is unrelated to his ability to perform the duties of his job, and (3) he was discriminated against in one of the ways described in the statute. Chmielewski v. Xermac, Inc., 457 Mich. 593, 602, 580 N.W.2d 817 (1998).

The act, as amended in 1990, defines handicap for employment related purposes as follows:

(i) A determinable physical or mental characteristic of an individual, which may result from disease, injury, congenital condition of birth, or functional disorder, if the characteristic:

(A) For purposes of article 2, substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual's ability to perform the duties of a particular job or position or substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual's qualifications for employment or promotion.

* * *

(ii) A history of a determinable physical or mental characteristic described in subparagraph (i).

(iii) Being regarded as having a determinable physical or mental characteristic described in subparagraph (i). [MCL 37.1103(e); MSA 3.550(103)(e).][¹⁰]

Relying on subsection (iii), plaintiff argued that defendant undertook a course of harassment because he perceived her as handicapped. Thus, resolution of this matter requires us to construe this subsection of the statute.

Where statutory language is clear and unambiguous, its plain meaning reflects legislative intent, and judicial construction is not permitted. McKenzie v. Auto Club Ins. Ass'n, 458 Mich. 214, 217, 580 N.W.2d 424 (1998). In this case, we find that the statutory language is clear and unambiguous.

Considering the statute in its entirety, to qualify for protection under subsection (iii), an employee must be "regarded as having a determinable physical or mental characteristic," as that characteristic is described in subsection (i) (emphasis added). Subsection (i)(A) describes the determinable physical or mental characteristic as one that "substantially limits 1 or more of the major life activities of that individual...." (Emphasis added). The characteristic must also be unrelated either to "the individual's ability to perform the duties of a particular job or position" or to "the individual's qualifications for employment or promotion."

Thus, while a plaintiff need not actually have a...