Robson v. General Motors Corp.

• Decision Date: 09 November 1984
• Docket Number: Docket No. 73056
• Citation: 137 Mich.App. 650,357 N.W.2d 919
• Parties: William J. ROBSON, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellee. 137 Mich.App. 650, 357 N.W.2d 919, 39 Fair Empl.Prac.Cas. (BNA) 1490
• Court: Court of Appeal of Michigan — District of US

Page 919

357 N.W.2d 919

William J. ROBSON, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellee.

Docket No. 73056.

137 Mich.App. 650, 357 N.W.2d 919,

39 Fair Empl.Prac.Cas. (BNA) 1490

Court of Appeals of Michigan.

Submitted May 17, 1984.

Decided Sept. 18, 1984.

Released for Publication Nov. 9, 1984.

[137 MICHAPP 651] Stark & Gordon by Deborah L. Gordon and Edward M. Oberski, Detroit, for plaintiff-appellant.

Mark R. Flora, Detroit, and Clark, Hardy, Lewis, Pollard & Page, P.C. by Terence V. Page and Neil H. Goodman, Birmingham, of counsel, for defendant-appellee on appeal.

[137 MICHAPP 652] Before KELLY, P.J., and BRONSON and SIMON ^*, JJ.

PER CURIAM.

Plaintiff brought this action pursuant to the Michigan Handicappers' Civil Rights Act, M.C.L. Sec. 37.1101 et seq.; M.S.A Sec. 3.550(101) et seq., to recover damages and obtain injunctive relief for alleged discrimination in employment. The circuit judge granted an accelerated judgment for defendant pursuant to GCR 1963, 116.1(5), holding that plaintiff's claim was barred by the applicable statute of limitations, M.C.L. Sec. 600.5805(8); M.S.A. Sec. 27A.5805(8), and plaintiff appeals as of right.

Plaintiff correctly points out that where, as here, a jury trial has been demanded as of right on or before the day of the hearing on a motion for accelerated judgment pursuant to GCR 1963, 116.1(5), resolution of any disputed questions of fact material to the motion must be postponed until the trial on the merits. However, because the circuit court's decision was correct even if plaintiff's factual claims are assumed to be true, postponement of resolution of the motion until the trial on the merits was unnecessary here.

As a child, plaintiff contracted polio and, as a result, was forced to undergo two operations to fuse vertebrae in his back. Plaintiff was employed by defendant as a test driver from 1965 to 1978 and performed satisfactorily in that capacity. Plaintiff's back condition remained unchanged during the course of his employment as a test driver. Nevertheless, in December, 1978, after a routine physical examination, plaintiff was removed from test driving because of his back condition. Plaintiff continued to work for defendant in other capacities until February 12, 1982, when he was laid off.

[137 MICHAPP 653] Plaintiff's complaint was filed on June 14, 1982. A three-year limitations period is established by M.C.L. Sec. 600.5805(8); M.S.A. Sec. 27A.5805(8). The crucial date is therefore June 14, 1979, and plaintiff's removal from test driving occurred before that date. Plaintiff, however, contends that his claim is not barred, either because defendant's conduct amounted to a continuing violation of the Handicappers' Civil Rights Act from December, 1978, until February 12, 1982, or because of other violations of the act by defendant within the limitations period.

Michigan courts regard federal precedents on questions analogous to those presented under Michigan's civil rights statutes as highly persuasive, although not binding. Northville Public Schools v. Civil Rights Comm., 118 Mich.App. 573, 576, 325 N.W.2d 497 (1982). In United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), plaintiff, an airline flight attendant, had been forced to resign when she married. She was subsequently rehired, but she was treated as a new employee for seniority purposes. Plaintiff's forced resignation did not take place within the limitations period, but plaintiff argued that the continuing effect of the forced resignation on her seniority established a continuing violation extending within the limitations period. The Court rejected plaintiff's argument, holding that what was necessary was a violation within the limitations period, not merely the continuing effects of past violations.

In Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), plaintiff, a college professor, was denied academic tenure but was not discharged immediately. Instead, he was offered, and he accepted, a one-year terminal contract. [137 MICHAPP 654] Plaintiff's employment terminated with the expiration of that contract. Explaining that the termination of employment was merely an effect of the allegedly discriminatory denial of tenure, the Court held that the limitations period began to run with the denial of tenure rather than with the termination of employment.

In Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981), the Court held that the limitations period began to run when the plaintiffs were notified that their employment would be terminated, not when termination actually occurred. The Court explained that Ricks showed that the proper focus was on the time of the discriminatory act, not the time at which the consequences of the act became painful.

Evans, Ricks and Chardon persuade us that the circuit court here did not err by granting an accelerated judgment for defendant. Plaintiff's complaint contains the following allegations:

"15. From the time that Plaintiff was removed from his position as a test driver until the date of his termination, he was continually subjected to a policy of handicap discrimination, including but not limited to, changes in shift...