Sanchez v. Lagoudakis, Docket No. 189094

• Decision Date: 09 July 1996
• Docket Number: Docket No. 189094
• Citation: 552 N.W.2d 472,217 Mich.App. 535
• Parties: , 6 A.D. Cases 811, 8 NDLR P 226 Dorene SANCHEZ, Plaintiff-Appellee, v. Kostas LAGOUDAKIS, d/b/a Paradise Family Restaurant, Defendant-Appellant. (On Remand)
• Court: Court of Appeal of Michigan — District of US

Page 472

552 N.W.2d 472

217 Mich.App. 535, 6 A.D. Cases 811,

8 NDLR P 226

Dorene SANCHEZ, Plaintiff-Appellee, v. Kostas LAGOUDAKIS, d/b/a Paradise Family Restaurant Defendant-Appellant. (On Remand)

Docket No. 189094.

Court of Appeals of Michigan.

Submitted May 14, 1996, at Grand Rapids.

Decided July 9, 1996, at 9:20 a.m.

Released for Publication Sept. 4, 1996.

Mark Brewer, Detroit and Mark Stuart, Marshall (Paul Denenfeld, Detroit, of counsel), for plaintiff.

George James Platsis, Okemos, for defendant.

Before DOCTOROFF, C.J., and NEFF and FITZGERALD, JJ.

ON REMAND

FITZGERALD, Judge.

Plaintiff Dorene Sanchez, formerly employed by defendant Kostas Lagoudakis as a waitress in his restaurant, brought suit against her former employer under the Handicappers' Civil Rights Act (HCRA), M.C.L. § 37.1101 et seq.; M.S.A. § 3.550(101) et seq., after defendant informed plaintiff that she could not continue to work until she secured medical evidence that she was disease free. Defendant's action was taken in the face of a rumor that plaintiff had acquired immunodeficiency syndrome (AIDS). The trial court summarily dismissed plaintiff's suit on defendant's motion after determining that because the complaint alleged, and discovery tended to show, plaintiff did not in fact have AIDS, she did not have a handicap as defined by the HCRA and, therefore, had failed to state a claim under the HCRA. We affirmed. Sanchez v. Lagoudakis, 184 Mich.App. 355, 457 N.W.2d 373 (1990). Our Supreme Court reversed, opining that discriminatory action taken by an employer on a mere perception of a handicap, even if erroneous, was actionable under the HCRA. Sanchez v. Lagoudakis, 440 Mich. 496, 502-506, 486 N.W.2d 657 (1992). The Supreme Court then remanded this case to the trial court for a determination "whether the condition Sanchez was perceived to have was a determinable physical characteristic resulting from disease unrelated to her ability to perform the duties of her job or her qualifications for employment or promotion." Id. at 506-507, 486 N.W.2d 657. On remand, defendant moved for summary disposition pursuant to MCR 2.116(C)(8) and (10) on the ground that defendant's actions were authorized by the Michigan Public Health Code [the Code], M.C.L. § 333.1101 et seq.; M.S.A. § 14.15(1101) et seq. Plaintiff also moved for summary disposition. The trial court denied defendant's motion, granted plaintiff's motion, and awarded plaintiff lost wages and tips, costs, and attorney fees. Defendant appealed as of right. We dismissed the appeal. Our Supreme Court vacated this Court's order of dismissal and remanded this case to us for plenary consideration. 450 Mich. 864, 539 N.W.2d 377 (1995). We now affirm.

I

Defendant argues that he, and not plaintiff was entitled to summary disposition with regard to plaintiff's HCRA claim because plaintiff did not, and cannot, establish, as a matter of law, that defendant's action of suspending her pending presentation of medical proof that she was free of disease constituted an unlawful discriminatory act under the HCRA. The question presented requires us to determine whether a person with AIDS has a handicap as defined by the HCRA, which, in turn, requires us to explore the relationship between the HCRA and the Code and the effect this relationship has on a food service employee's ability to perform the duties of a particular job.

A

In reviewing a trial court's decision on a motion for summary disposition brought pursuant to MCR 2.116(C)(10), this Court examines all relevant affidavits, depositions, admissions, and other documentary evidence and construes the evidence in favor of the nonmoving party. The Court then determines whether a genuine issue of material fact exists on which reasonable minds could differ. Shirilla v. Detroit, 208 Mich.App. 434, 437, 528 N.W.2d 763 (1995). We review de novo a trial court's grant or denial of a motion for summary disposition. West Bloomfield Twp v. Karchon, 209 Mich.App. 43, 48, 530 N.W.2d 99 (1995).

Section 202(1)(b) of the HCRA, M.C.L. § 37.1202(1)(b); M.S.A. § 3.550(202)(1)(b), provides that an employer shall not "[d]ischarge 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." To establish a prima facie case of discrimination under the HCRA, it must be shown that (1) the plaintiff is "handicapped" as defined in the HCRA, (2) the handicap is unrelated to the plaintiff's ability to perform the duties of a particular job, and (3) the plaintiff has been discriminated against in one of the ways set forth in the statute. Merillat v. Michigan State Univ., 207 Mich.App. 240, 244, 523 N.W.2d 802 (1994).

Section 103(b)(i) of the HCRA, M.C.L. § 37.1103(b)(i); M.S.A. § 3.550(103)(b)(i), in effect at the time Sanchez filed her claim, defined the term "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 disorder which characteristic ... is unrelated to the individual's ability to perform the duties of a particular job or position, or is unrelated to the individual's qualifications for employment or promotion." See also Sanchez, 440 Mich. at 500-501, 486 N.W.2d 657.

We begin our discussion of whether a food service employee with AIDS is handicapped within the meaning of § 103(b)(i) with a recitation of some pertinent rules of statutory construction, from which we take guidance. The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Farrington v. Total Petroleum, Inc., 442 Mich. 201, 212, 501 N.W.2d 76 (1993). The first criterion in determining intent is the specific language of the statute. House Speaker v. State Administrative Bd, 441 Mich. 547, 567, 495 N.W.2d 539 (1993). Courts may not speculate about the probable intent of the Legislature beyond the words expressed in the statute. If the plain and ordinary meaning of the language is clear, judicial construction is normally neither necessary nor permitted. Lorencz v. Ford Motor Co., 439 Mich. 370, 376, 483 N.W.2d 844 (1992). A court may consult dictionary definitions to ascertain the ordinary meaning of a word. Popma v. Auto Club Ins. Ass'n, 446 Mich. 460, 470, 521 N.W.2d 831 (1994). Judicial construction is appropriate only if reasonable minds could differ regarding the meaning of a statute. Dep't of Social Services v. Brewer, 180 Mich.App. 82, 84, 446 N.W.2d 593 (1989).

The first determination we must make is whether a person with AIDS has a "physical characteristic" within the meaning of the HCRA. We are persuaded that a person with AIDS has such a characteristic.

The word "physical" is defined as "[r]elating or pertaining to the body, as distinguished from the mind or soul or the emotions ... [m]aterial, substantive, having an objective existence...." Black's Law Dictionary (5th ed), p. 1032. The word "characteristic" is defined as "a distinguishing trait, feature, or quality; peculiarity." Webster's New World Dictionary, Third College Edition, p. 235.

The documentary evidence submitted by the parties established the following pertinent medical facts. A person with AIDS is in the late clinical stages of infection with the human immunodeficiency virus (HIV). The virus attacks white blood cells (T-Lymphocytes) and thereby compromises the host's immune system, leaving the host unable to fight other diseases. Without a functioning immune system, the host becomes vulnerable to infection by bacteria, protozoa, fungi, viruses, and other malignancies, which may cause life-threatening illness, such as pneumonia, meningitis, and cancer. Absent the compromised immune system, the opportunistic diseases would not otherwise gain a foothold in the body.

We conclude that a severely compromised immune system constitutes a physical characteristic within the meaning of § 103(b)(i). The evidence submitted by the parties establishes that this condition represents a distinguishing trait of the body. Sanchez, 440 Mich. at 501, 486 N.W.2d 657.

The next determination we must make is whether a severely compromised immune system is "determinable" within the meaning of § 103(b)(i). We are persuaded that it is.

The word "determinable" is defined as "susceptible of being determined, found out, definitely decided upon, or settled." Black's Law Dictionary (5th ed), p. 405.

The documentary evidence provided by the parties establishes that the presence of HIV is identified through serological tests that reveal the presence of HIV antibodies that are produced by the host's body generally within two weeks to three months of the host's exposure to HIV. Additionally, the severity of HIV infection is also identified through serological tests that reveal various abnormalities, including abnormalities in the absolute T-helper cell count. Finally, a person is diagnosed with AIDS when serological, histological, and cultural techniques employed reveal the existence of one of more than a dozen indicator diseases in combination with evidence of HIV infection or the ruling out of other known causes of immunodeficiency.

We conclude that a compromised immune system constitutes a "determinable" characteristic within the meaning of § 103(b)(i). This characteristic is subject to definite and objective identification by serological, histological, and cultural techniques. Sanchez, 440 Mich. at 501, 486 N.W.2d 657.

We must also determine whether a compromised immune system may "result from disease" within the meaning of § 103(b)(i). We conclude that it may so result.

The documentary evidence submitted by the parties indicates that HIV infection causes progressive damage to the immune system and other organic systems, especially the...