Rymar v. Michigan Bell Telephone Co., Docket No. 120278

• Decision Date: 05 August 1991
• Docket Number: Docket No. 120278
• Citation: 190 Mich.App. 504,476 N.W.2d 451
• Court: Court of Appeal of Michigan — District of US
• Parties: Patricia RYMAR, Plaintiff-Appellee, v. MICHIGAN BELL TELEPHONE COMPANY, Defendant-Appellant. 190 Mich.App. 504, 476 N.W.2d 451

Page 451

476 N.W.2d 451

Patricia RYMAR, Plaintiff-Appellee, v. MICHIGAN BELL TELEPHONE COMPANY, Defendant-Appellant.

Docket No. 120278.

190 Mich.App. 504, 476 N.W.2d 451

Court of Appeals of Michigan.

Submitted Feb. 21, 1991, at Detroit.

Decided Aug. 5, 1991, at 9:25 a.m.

Released for Publication Nov. 18, 1991.

[190 MICHAPP 505] Dib & Fagan, P.C. by Barry S. Fagan, Detroit, for plaintiff-appellee.

Albert Calille and Laura Demetry White, Detroit, for defendant-appellant.

Before REILLY, P.J., and SHEPHERD and MARILYN J. KELLY, JJ.

MARILYN J. KELLY, Judge.

This is an employment discrimination claim filed under the Michigan Handicappers' Civil Rights Act (MHCRA). M.C.L. Sec. 37.1101 et seq.; M.S.A. Sec. 3.550(101) et seq. The trial court denied defendant's motion for summary disposition. MCR 2.116(C)(8). Defendant appeals the decision by leave granted. We affirm.

On March 8, 1988, plaintiff took a two-month leave of absence to care for her terminally ill mother. Her mother died on March 20. Plaintiff then sought and defendant granted her a medical leave which extended through May 31, 1988. Plaintiff was unable to return to work on May 31 and requested an extension. Defendant informed her that she must return by July 1, 1988, or it could not guarantee reemployment. Plaintiff was again unable to work. She submitted a letter from her physician stating, however, that she would be able to return on August 1 at the earliest. Defendant terminated plaintiff's employment on June 30, 1988.

On August 8, 1988, plaintiff filed a claim for workers' compensation. She listed her disability as an ongoing emotional disorder. On August 28, she [190 MICHAPP 506] filed this employment discrimination suit. She later withdrew her claim for workers' compensation.

On appeal, defendant argues that the trial court erred in denying its motion for summary disposition. Defendant maintains that there is no question that, on the date of termination, plaintiff's disability was related to her ability to perform her job. Therefore, her disability was not a "handicap" under the MHCRA. Carr v. General Motors Corp., 425 Mich. 313, 389 N.W.2d 686 (1986). Alternatively, defendant claims that at the time of termination plaintiff was not in a "mentally ill restored" condition. Thus, she did not fall within the disability categories described in the MHCRA.

The MHCRA covers only those whose disabilities are unrelated to their capacity to perform their jobs. The handicapped person seeking employment must be capable of performing the duties of the position. A disability that is related to one's ability to perform the duties of a particular position is not a "handicap" within the meaning of the act. Carr, 425 Mich. at 315-316, 321-322, 389 N.W.2d 686.

There is no question that, on the date of termination, plaintiff was unable to perform her job because of her disability. Michigan case law has consistently used the date of termination as the relevant point to assess the status of a disability. Ashworth v. Jefferson Screw Products, Inc., 176 Mich.App. 737, 440 N.W.2d 101 (1989); Bowerman v. Malloy Lithographing, Inc., 171 Mich.App. 110, 116, 430 N.W.2d 742 (1988); Doman v. Grosse Pointe Farms, 170 Mich.App. 536, 542, 428 N.W.2d 708 (1988); Wilson v. Acacia Park, 162 Mich.App. 638, 643-644, 413 N.W.2d 79 (1987).

However, we are not persuaded that the date of termination is the obligatory focal point in every case. We agree with Judge Shepherd's reasoning [190 MICHAPP 507] in his dissent in Ashworth. A mandatory fixation on the date of termination ignores the factor of time. Ashworth, 176 Mich.App. at 746, 440 N.W.2d 101. That factor was not relevant in the Carr case, where the plaintiff was permanently, not temporarily, disabled. Moreover, it is notable that the Supreme Court in Carr quotes the following segment from the 1976 Journal of the Senate 590:

[I]f a handicapped person seeking employment meets the qualifications of the job and can attain the performance levels required within a reasonable time, he must, by law be given the same opportunity as other applicants to secure the position. [Carr, 425 Mich. at 319, 389 N.W.2d 686. Emphasis added.]

A representation was made in this case that defendant denied plaintiff the same leave time as other employees. An employer must give its employee a reasonable time to heal, under like conditions as other employees, so...