Sanchez v. Lagoudakis

• Decision Date: 16 July 1990
• Docket Number: Docket No. 115526
• Citation: 457 N.W.2d 373,184 Mich.App. 355
• Parties: , 58 Empl. Prac. Dec. P 41,397 Dorene SANCHEZ, Plaintiff-Appellee-Cross-Appellant, v. Kostas LAGOUDAKIS d/b/a Paradise Family Restaurant, Defendant-Appellant-Cross-Appellee, and Maria Rojas Gutierrez, Defendant, and Michigan Organization for Human Rights, Amicus Curiae.
• Court: Court of Appeal of Michigan — District of US

Page 373

457 N.W.2d 373

184 Mich.App. 355, 58 Empl. Prac. Dec. P 41,397

Dorene SANCHEZ, Plaintiff-Appellee-Cross-Appellant, v. Kostas LAGOUDAKIS d/b/a Paradise Family Restaurant Defendant-Appellant-Cross-Appellee and Maria Rojas Gutierrez, Defendant and Michigan Organization for Human Rights, Amicus Curiae.

Docket No. 115526.

Court of Appeals of Michigan.

Submitted March 22, 1990.

Decided June 19, 1990.

Released for Publication July 16, 1990.

American Civil Liberties Union Fund of Michigan, Detroit by Mark Brewer and Mark Stuart Marshall; and Paul Denefeld Detroit, of counsel, for plaintiff-appellee-cross-appellant.

George J. Platsis, Okemos, for defendant-appellant-cross-appellee.

Michigan Organization for Human Rights by David Piontkowsky, Ferndale, amicus curiae.

Before GILLIS, P.J., and McDONALD and FITZGERALD, ^* JJ.

PER CURIAM.

Defendant appeals as of right from a February 10 and 23, 1989, opinion and order granting summary disposition in favor of defendant, dismissing plaintiff's suit under the Handicappers' Civil Rights Act and ordering plaintiff be awarded lost wages, tips, costs and attorney fees. Plaintiff cross appeals from the dismissal of the action.

This case involves the application of the Handicappers' Civil Rights Act, M.C.L. Sec. 37.1101 et seq.; M.S.A. Sec. 3.550(101) et seq., to situations involving perceived or apparent handicaps. We affirm the trial court's dismissal of plaintiff's handicappers' civil rights suit, finding the act inapplicable to cases of perceived handicaps.

Plaintiff was a waitress working in defendant Kostas Lagoudakis' restaurant. Defendant was in all ways satisfied with plaintiff's performance. However, after receiving complaints from a group of restaurant patrons regarding plaintiff's rumored status as an AIDS [Acquired Immune Deficiency Syndrome] victim, defendant requested plaintiff undergo an AIDS test and not return to work until she could produce a physician's certificate stating that she was healthy. The test was to be conducted at plaintiff's expense.

After undergoing a test for the presence of the AIDS virus and receiving a negative result, plaintiff, due to her embarrassment, declined to return to work. Thereafter, plaintiff filed the instant suit alleging discrimination under the Handicappers' Civil Rights Act. Defendant moved for summary disposition pursuant to both M.C.R. 2.116(C)(8) and (10), claiming in part that the act was inapplicable because plaintiff suffered no actual handicap as defined within the act. The trial court agreed with defendant and found the absence of a handicap prohibitive to suit under the act. However, ostensibly pursuant to his "equitable powers," the trial court conditioned dismissal of the suit on plaintiff's reimbursement by defendant for lost wages, costs and partial attorney fees.

Defendant now appeals as of right from the order of dismissal. We fail to understand the purpose behind defendant's appeal. Defendant's brief addresses the question whether a person with a perceived handicap is protected by the Handicappers' Civil Rights Act. However, contrary to defendant's insinuation, this issue was decided in defendant's favor by the trial court. We assume defendant does not desire a reversal of said ruling. Moreover, although we find that portion of the February 22 order granting plaintiff's partial damages, costs and attorney fees on equitable grounds to be suspect and clearly contrary to defendant's interests, defendant fails to sufficiently brief or argue this issue on appeal. We therefore decline to address the same. In re Futch, 144 Mich.App. 163, 375 N.W.2d 375 (1984); Roberts & Son Contracting, Inc. v. North Oakland Development Corp., 163 Mich.App. 109, 413 N.W.2d 744 (1987).

Thus, the sole issue before us remains the applicability of the Handicappers' Civil Rights Act to situations involving perceived handicaps. The Handicappers' Civil Rights Act prohibits an employer from discharging or otherwise discriminating against an individual 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. Sec. 37.1202(1)(b); M.S.A. Sec. 3.550(202)(1)(b). The act defines a handicap as a determinable physical or mental characteristic of an individual or a history of the characteristic which may result from disease, injury, congenital condition of birth, or functional...