Norris v. State Farm Fire & Cas. Co., Docket No. 195422

• Decision Date: 10 April 1998
• Docket Number: Docket No. 195422
• Citation: 229 Mich.App. 231,581 N.W.2d 746
• Parties: Gail NORRIS, Plaintiff-Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY, State Farm Annuity and Life Insurance Company, State Farm General Insurance Company, State Farm Life Insurance Company, State Farm Mutual Insurance Company, and Martha J. Piney, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 746

581 N.W.2d 746

229 Mich.App. 231

Gail NORRIS, Plaintiff-Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY, State Farm Annuity and Life Insurance Company, State Farm General Insurance Company, State Farm Life Insurance Company, State Farm Mutual Insurance Company, and Martha J. Piney, Defendants-Appellees.

Docket No. 195422.

Court of Appeals of Michigan.

Submitted Oct. 8, 1997, at Detroit.

Decided April 10, 1998, at 9:15 a.m.

Released for Publication July 29, 1998.

Powell & Gerisch by Jonathan P. Gerisch, Ann Arbor, for Plaintiff-Appellant.

Pepper, Hamilton & Scheetz by Ribert C. Ludolph and Judith E. Caliman, Detroit, for State Farm Fire and Casualty Company, State Farm Annuity and Life Insurance Company, State Farm General Insurance Company, State Farm Life Insurance Company, and State Farm Mutual Insurance Company.

Sullivan, Ward, Bone, Tyler & Asher, P.C. by A. Stuart Tompkins and Sheri B. Cataldo, Southfield, for Martha J. Piney.

Before CORRIGAN, C.J., and RICHARD ALLEN GRIFFIN and HOEKSTRA, JJ.

RICHARD ALLEN GRIFFIN, Judge.

Plaintiff appeals as of right an order granting summary disposition in favor of defendants regarding plaintiff's claims arising out of her discharge from employment. We reverse in part and affirm in part with regard to defendant Martha J. Piney and affirm with regard to defendants State Farm Fire and Casualty Company, State Farm Annuity and Life Insurance Company, State Farm General Insurance Company, State Farm Life Insurance Company, and State Farm Mutual Insurance Company.

I

Plaintiff, who suffers from rheumatoid arthritis, began working for defendant Martha J. Piney (Piney) in November 1994 as a probationary employee. Martha J. Piney is the owner and operator of the Piney Insurance Agency, which sells exclusively insurance policies written by defendants State Farm. On February 24, 1995, following a satisfactory three-month job performance review, defendant Piney offered and plaintiff accepted a position of regular employment as a claims specialist. However, less than three weeks later, on March 10, defendant Piney terminated plaintiff's employment for alleged poor job performance. Defendant Piney claims that the employment deficiencies noted in plaintiff's thirty- and sixty-day reviews had escalated to the extent that plaintiff's overall job performance was unsatisfactory. However, in her deposition, plaintiff alleges that at the conclusion of her March 10 meeting with defendant Piney, Piney admitted to plaintiff that the true reason for her discharge was "[i]t's because you're handicap [sic]."

Following her discharge, plaintiff filed suit against defendant Piney and defendants State Farm, alleging a variety of claims. The lower court granted summary disposition in favor of defendants pursuant to MCR 2.116(C)(10). Plaintiff appeals as of right the dismissal of her claims of alleged unlawful discrimination in violation of the Michigan Handicappers' Civil Rights Act (HCRA), M.C.L. § 37.1101 et seq.; M.S.A. § 3.550(101) et seq., intentional infliction of emotional distress, and negligent supervision.

II

A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual support for a claim. In Quinto v. Cross & Peters Co., 451 Mich. 358, 362-363, 547 N.W.2d 314 (1996), the Supreme Court set forth the following standards for deciding such a motion:

In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), a trial court considers affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the affidavits or other documentary evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10), (G)(4).

In presenting a motion for summary disposition, the moving party has the initial burden of supporting its position by affidavits, depositions, admissions, or other documentary evidence. Neubacher v. Globe Furniture Rentals, 205 Mich.App. 418, 420, 522 N.W.2d 335 (1994). The burden then shifts to the opposing party to establish that a genuine issue of disputed fact exists. Id. Where the burden of proof at trial on a dispositive issue rests on a nonmoving party, the nonmoving party may not rely on mere allegations or denials in pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists. McCart v. J. Walter Thompson, 437 Mich. 109, 115, 469 N.W.2d 284 (1991). If the opposing party fails to present documentary evidence establishing the existence of a material factual dispute, the motion is properly granted. McCormic v. Auto Club Ins. Ass'n, 202 Mich.App. 233, 237, 507 N.W.2d 741 (1993).

In the present case, plaintiff has established a genuine issue of material fact regarding whether she was unlawfully discriminated against because of her handicap. Plaintiff testified regarding an alleged admission by defendant Piney of employment discrimination based on her handicap. Because direct evidence of unlawful discrimination was presented, the burden-shifting approach of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), is not applicable. Harrison v. Olde Financial Corp., 225 Mich.App. 601, 572 N.W.2d 679 (1997). Accordingly, the lower court erred in granting summary disposition on the basis that plaintiff failed to satisfy her burdens of production under McDonnell Douglas. As the Sixth Circuit Court of Appeals stated in Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1184 (C.A.6, 1996):

[W]hen the plaintiff has direct evidence of discrimination based on his or her disability, there is no need for a McDonnell Douglas type burden shift and traditional burdens of proof will apply.... Nonetheless, the disabled individual always bears the burden of proving that he or she is "otherwise qualified" for the position in question, absent the challenged job function or with the proposed accommodation.

Because plaintiff presented direct evidence of unlawful discrimination, the pivotal issue is whether plaintiff submitted sufficient evidence to establish a genuine issue of material fact that she was qualified for the position from which she was discharged. Contrary to the position taken by the dissent, we conclude that plaintiff has sustained her burden for purposes of summary disposition. We are mindful that it is not the role of the court to evaluate the strength of the evidence in ruling regarding a motion for summary disposition. Rather, when deciding a motion for summary disposition that alleges no genuine issue of material fact,

[a] trial court tests the factual support of a plaintiff's claim when it rules upon a motion for summary disposition filed under MCR 2.116(C)(10). Lichon v. American Universal Ins. Co., 435 Mich. 408, 414, 459 N.W.2d 288 (1990). The court must consider the affidavits, pleadings, depositions, admissions, and documentary evidence submitted or filed in the action. The court is not permitted to assess credibility, or to determine facts on a motion for summary judgment. Zamler v. Smith, 375 Mich. 675, 678-679, 135 N.W.2d 349 (1965). Instead, the court's task is to review the record evidence, and all reasonable inferences therefrom, and decide whether a genuine issue of any material fact exists to warrant a trial.7

[Skinner v. Square D Co., 445 Mich. 153, 161, 516 N.W.2d 475 (1994).]

Viewing the evidence in a light most favorable to the nonmoving party, we conclude that plaintiff presented sufficient evidence for a reasonable person to conclude that she was qualified for the job from which she was discharged. In particular, in a ninety-day performance review held less than three weeks before plaintiff's discharge, defendant Piney evaluated plaintiff's job performance as satisfactory. In light of plaintiff's satisfactory job performance, defendant Piney thereafter offered plaintiff a regular full-time position. Piney's February 24, 1995, offer of permanent employment to plaintiff states as follows:

Gail Norris

Start Date: 11/7/94

2/24/94 [sic] Three month review. I have worked with Gail for three months and two weeks now. In three months she has proven to be a quick learner, very task oriented, and very dependable. At this time I am making an offer from temporary employment to holding the position of claims specialist for my agency with the hopes that Gail will continue to develop and grow as an expert in her position and continue to strive and reach the goals that are set for this agency.

Continued salary with benefit package as attached and presented at time of original start date.

2/24/95 Gail Norris 2/24/95 Martha J. Piney, agent

In addition to defendant Piney's admissions regarding plaintiff's job qualifications, plaintiff also presented the deposition testimony of coemployees who noted no change in plaintiff's job performance in the period from February 24, 1995, until her discharge. Finally, although Piney claims that plaintiff was discharged because of poor customer-service skills, plaintiff submitted evidence that there were no complaints from customers regarding her job performance.

After recognizing that fact finding and assessment of credibility are inappropriate when ruling regarding a motion for summary disposition, Dzierbowicz v. American Seating Co., 450 Mich. 969, 544 N.W.2d 473 (1996); Crittenden v. Chrysler Corp., 178 Mich.App. 324, 443 N.W.2d 412 (1989), we conclude that a genuine issue of material fact exists regarding whether plaintiff was qualified for the position at the time of her discharge.

III

Next, plaintiff claims that the lower court committed error requiring reversal in granting summary disposition in favor of defendants State Farm with regard to plaintiff's ...