Rollert v. Department of Civil Service

• Decision Date: 06 March 1998
• Docket Number: Docket No. 199101
• Citation: 579 N.W.2d 118,228 Mich.App. 534
• Parties: , 7 A.D. Cases 1601, 12 NDLR P 52 John ROLLERT, Plaintiff-Appellant, v. DEPARTMENT OF CIVIL SERVICE, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 118

579 N.W.2d 118

228 Mich.App. 534, 7 A.D. Cases 1601,

12 NDLR P 52

John ROLLERT, Plaintiff-Appellant, v. DEPARTMENT OF CIVIL SERVICE, Defendant-Appellee.

Docket No. 199101.

Court of Appeals of Michigan.

Submitted Feb. 3, 1998, at Lansing.

Decided March 6, 1998, at 9:25 a.m.

Released for Publication June 17, 1998.

Fraser Trebilcock Davis & Foster, P.C. by Brian D. Herrington, Lansing, for plaintiff.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Solicitor General, and Marie Shamraj, Asst. Atty. Gen., for defendant.

Before MARKEY, P.J., and BANDSTRA and MARKMAN, JJ.

MARKMAN, Judge.

Plaintiff appeals as of right an order granting defendant's motion for summary disposition. We affirm.

Plaintiff, a diagnosed schizophrenic or paranoid schizophrenic, began working for the Michigan Employment Security Commission (MESC) in 1983. (Defendant administers the MESC's benefit plans.) Plaintiff alleged that defendant's long-term disability (LTD) plan discriminated against him 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. Pursuant to the plan, employees who had accrued fewer than 184 hours of sick time, "Plan I employees," were entitled to LTD benefits for twenty-four months while employees who accrued at least 184 hours of sick time, "Plan II employees," were entitled to LTD benefits up to the age of sixty-nine. Plaintiff was granted a medical leave in October 1992. He filed for LTD benefits in March 1993. He was categorized as a Plan I employee because he had fewer than 184 hours of accrued sick time. Because he previously received benefits during medical absences, plaintiff's LTD benefits ended in April 1994. Plaintiff alleged that the plan's distinction in benefits based on accrued sick time deprived him of LTD benefits and constituted discrimination on the basis of his handicap since he needed to utilize more sick time because of his handicap. Defendant filed a motion for summary disposition, alleging that plaintiff was not "handicapped" as defined by the HCRA and, therefore, not protected by the statute. Further, defendant argued that its LTD plan was not discriminatory. The trial court granted defendant's motion for summary disposition. It held that plaintiff's condition was related to his ability to perform his job and that he was therefore not covered by the HCRA. It also declared that defendant's LTD plan was not discriminatory because "the disparate treatment [was] applied equally to those with and without disabilities."

Appellate review of decisions regarding motions for summary disposition is de novo. Spiek v. Michigan Dep't of Transportation, 456 Mich. 331, 572 N.W.2d 201 (1998).

MCR 2.116(C)(8) tests the legal sufficiency of the claim on the pleadings alone to determine whether the plaintiff has stated a claim on which relief may be granted. The motion must be granted if no factual development could justify the plaintiff's claim for relief. MCR 2.116(C)(10) tests the factual support of a plaintiff's claim. The court considers the affidavits, pleadings, depositions, admissions, and other documentary evidence submitted or filed in the action to determine whether a genuine issue of any material fact exists to warrant a trial. [Id. at 337, 572 N.W.2d 201]

The HCRA defines the term "handicap" as

[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: ... 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 activities of that individual and is unrelated to the individual's qualifications for employment or promotion. [M.C.L. § 37.1103(e)(i)(A); M.S.A. § 3.550(103)(e)(i)(A).]

Without deciding the issue, we will assume for purposes of this opinion that plaintiff's mental condition constitutes a "handicap" under the HCRA, (i.e., that plaintiff's mental condition "is unrelated to the individual's ability to perform the duties of a particular job or position"). ¹ The issue then becomes whether the LTD plan discriminates on the basis of a handicap. In pertinent part, the HCRA provides that an employer shall not:

(b) Discharge or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment, because of a handicap that is unrelated to the individual's ability to perform the duties of a particular job or position.

(c) Limit, segregate, or classify an employee or applicant for employment in a way which deprives or tends to deprive an individual of employment opportunities or otherwise adversely affects the status of an employee because of a handicap that is unrelated to the individual's ability to perform the duties of a particular job or position. [M.C.L. § 37.1202(1)(b), (c); M.S.A. § 3.550(202)(1)(b), (c).]

To establish a prima facie case of discrimination under the HCRA, "a plaintiff must demonstrate (1) that he is handicapped as defined by the HCRA, (2) that the handicap is unrelated to his ability to perform the duties of a particular job, and (3) that he was discriminated against in one of the ways described in the statute." Tranker v. Figgie Int'l, Inc., 221 Mich.App. 7, 11, 561 N.W.2d 397 (1997). Under the approach set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), "the threshold inquiry is whether the plaintiff has established a prima facie case of discrimination." Meagher v. Wayne State Univ., 222 Mich.App. 700, 710, 565 N.W.2d 401 (1997). To establish a prima facie case of discrimination, the plaintiff must produce enough evidence "to create a rebuttable presumption of ... discrimination." Id. at 711, 565 N.W.2d 401. If the plaintiff establishes a prima facie case, the burden of production then shifts to the employer to articulate a nondiscriminatory rationale for the action. Id. at 711, 565 N.W.2d 401. If the employer meets this burden of production, the plaintiff must then "prove by a preponderance of the evidence that the legitimate reason offered by the defendant was a mere pretext." Id.

Here, plaintiff alleges in his complaint that the plan "discriminates against individuals such as plaintiff who need to use sick time because of their handicap." This claim is premised upon the assumption that handicapped employees disproportionately will be categorized as Plan I employees by virtue of their high utilization of sick time. We cannot accept this argument. First, it is not self-evident that handicapped employees use disproportionately more sick time than do nonhandicapped employees. Handicapped employees are so characterized on the basis of their handicap, not their propensity to take disproportionate advantage of sick time. Handicapped employees, like nonhandicapped employees, vary in the amount of sick time they utilize. Handicapped employees who accrue 184 hours of sick time will be designated as Plan II employees, not Plan I employees. Concomitantly, nonhandicapped employees who fail to accrue 184 hours of sick time for reasons unrelated to any handicap will be designated as Plan I employees. Therefore, the total group of Plan I employees is both under-inclusive and...