Shirilla v. City of Detroit

• Decision Date: 17 January 1995
• Docket Number: Docket No. 159927
• Citation: 208 Mich.App. 434,528 N.W.2d 763
• Parties: , 6 NDLR P 195 George SHIRILLA, Plaintiff-Appellant, v. CITY OF DETROIT, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 763

528 N.W.2d 763

208 Mich.App. 434, 6 NDLR P 195

George SHIRILLA, Plaintiff-Appellant, v. CITY OF DETROIT, Defendant-Appellee.

Docket No. 159927.

Court of Appeals of Michigan.

Submitted Oct. 4, 1994, at Detroit.

Decided Jan. 17, 1995, at 10:35 a.m.

Released for Publication March 21, 1995.

Stark & Gordon by Deborah L. Gordon and Martha I. Seijas, Royal Oak, for plaintiff.

Jack Timmony, Asst. Corp. Counsel, Detroit, for defendant.

Before MICHAEL J. KELLY, P.J., and CYNAR ^* and SCHAEFER, ^** JJ.

MICHAEL J. KELLY, Presiding Judge.

Plaintiff appeals as of right an order of the circuit court granting defendant's motion for summary disposition under MCR 2.116(C)(8) for failure to state a claim under the Handicappers' Civil Rights Act, M.C.L. § 37.1101 et seq.; M.S.A. § 3.550(101) et seq. We affirm.

Plaintiff applied for employment as a city bus driver in May 1989. On July 19, 1990, plaintiff received word that he was certified for hiring. On July 24, 1990, he was instructed to appear for a physical examination. Following the examination, defendant informed plaintiff that his employment application was rejected because he was taking insulin. On August 2, 1990, plaintiff's doctor informed defendant that plaintiff's diabetic condition was under control and would not impair his driving ability. However, defendant refused to hire plaintiff. Plaintiff subsequently filed this action under the handicappers' act.

Defendant moved for summary disposition under MCR 2.116(C)(8) and (10). The trial court granted defendant's motion on the ground that plaintiff's complaint failed to state a claim upon which relief could be granted.

A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of the pleadings. Wade v. Dep't of Corrections, 439 Mich. 158, 162, 483 N.W.2d 26 (1992). All well-pleaded allegations must be accepted as true and construed most favorably to the nonmoving party. Id. at 162-163, 483 N.W.2d 26. Summary disposition is appropriate only where the claims are so clearly unenforceable as a matter of law that no factual development could possibly justify a right to recovery. Id. at 163, 483 N.W.2d 26.

The trial court erred in grounding summary disposition on MCR 2.116(C)(8). Plaintiff's complaint contained all the elements of a claim under the handicappers' act, alleging that he was denied employment on the basis of a handicap unrelated to his ability to perform the duties of the position for which he applied. See Sanchez v. Lagoudakis, 440 Mich. 496, 502, 486 N.W.2d 657 (1992); M.C.L. § 37.1202(1)(b); M.S.A. § 3.550(202)(1)(b).

However, because the trial court considered evidence submitted by defendant, it appears that the court simply misstated the rule under which it was deciding the motion for summary disposition. An order granting summary disposition under the wrong court rule may be reviewed under the correct rule. Ginther v. Zimmerman, 195 Mich.App. 647, 649, 491 N.W.2d 282 (1992). Our review of the record indicates that summary disposition was appropriate under MCR 2.116(C)(10).

In reviewing an order of summary disposition under 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. Farm Bureau Mutual Ins. Co. v. Stark, 437 Mich. 175, 184-185, 468 N.W.2d 498 (1991).

In support of its motion for summary disposition, defendant submitted an affidavit explaining that the sole reason for not hiring plaintiff was his diabetic condition, which required insulin and precluded him from working as a bus driver under state and federal regulations. Specifically, defendant invoked 49 CFR 391.41(b)(3) of the federal motor carrier safety regulations, as incorporated into state law in 1989 with the enactment of § 31 of the Motor Bus Transportation Act (MBTA), M.C.L. § 474.131; M.S.A. § 9.1675(31). ¹ Section 31 of the MBTA provides, in relevant part:

The following federal motor carrier safety regulations adopted by the United Stated department of transportation and in effect on the effective date of this section are adopted by the department and shall be enforced in relation to motor carriers of passengers:

* * * * * *

(b) 49 CFR part 391, qualifications of drivers, except 391.11(b)(1).

49 CFR 391.41 provides, in relevant part:

(a) A person shall not drive a motor vehicle unless he is physically qualified to do so and, except as provided in § 391.67, has on his person the original, or a photographic copy, of a medical examiner's certificate that he is physically qualified to drive a motor vehicle.

(b) A person is physically qualified to drive a motor vehicle if that person--

* * * * * *

(3) Has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control....

Plaintiff's discrimination claim arises under § 202 of the handicappers' act, which provides, in pertinent part:

(1) An employer shall not:

(a) Fail or refuse to hire, recruit, or promote 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. § 37.1202; M.S.A. § 3.550(202).]

The central issue is whether § 31 of the MBTA, incorporating 49 CFR 391.41, creates a conflict with the handicappers' act and, if so, how that conflict should be resolved. This analysis begins with the plain language of the statutes at issue. House Speaker v. State Administrative Bd., 441 Mich. 547, 562-563, 495 N.W.2d 539 (1993).

We believe that a clear conflict exists. The plain language of 49 CFR 391.41 places a blanket prohibition on the employment in motor carrier driving positions of diabetic persons requiring insulin. ² It makes no exception for the applicant who, despite his diabetic condition, is able to perform the job safely. In doing so, the regulation renders irrelevant and superfluous the central inquiry of the handicappers' act: Whether the diabetic condition that prompted denial of a job application is related to the applicant's ability to perform the duties of the position applied for.

Section 31 of the MBTA does not indicate whether the Legislature intended to alter the handicappers' act. Thus, the rules of statutory construction must be consulted to resolve the conflict. Rancour v. Detroit Edison Co., 150 Mich.App. 276, 284-285, 388 N.W.2d 336 (1986). The handicappers' act, enacted in 1976, predates the Legislature's adoption of the federal motor carrier safety regulations. It is presumed that the Legislature was aware of the handicappers' act at the time it adopted 49 CFR 391.41 in 1989. House Speaker, supra 441 Mich. at 562-563, 495 N.W.2d 539. Where it is clear that a statute conflicts with an earlier enacted provision, the Legislature is deemed to have repealed the prior statute to the extent of the conflict. Id. at 563, 495 N.W.2d 539. Here, the Legislature chose to adopt a provision that clearly conflicts with the handicappers' act. Enforcing the two statutes as written would place defendant in a Catch-22 dilemma. By hiring plaintiff as a driver despite his diabetes, defendant would violate § 31 of the MBTA; yet, by refusing to hire plaintiff because of his diabetes, defendant might violate the handicappers' act. Although there is a presumption against implied repeals that requires courts to read statutes harmoniously and give them a reasonable effect, House Speaker, supra at 562, 495 N.W.2d 539, we cannot do so in this case without reading a qualification into 49 CFR 391.41 that simply is not there. ³ Doing so would constitute not a harmonious reading of the two statutes but rather a shortcut of the conflict analysis by merely resolving the conflict in favor of the handicappers' act. Where a clear conflict exists, the later enactment controls. Wozniak v. General Motors Corp., 198 Mich.App. 172, 181, 497 N.W.2d 562 (1993). We therefore deem the handicappers' act impliedly repealed in part by § 31 of the MBTA as applied to the facts of this case.

Plaintiff's reliance on Dep't of Civil Rights ex rel Lanphar v. A & C Carriers, 157 Mich.App. 534, 403 N.W.2d 586 (1987), is misplaced. While the Court did state that the handicappers' act was not preempted by the federal motor carrier safety regulations, id. at 538, 403 N.W.2d 586, the Court's focus was on an apparent conflict between state law and a federal regulation. Here, the federal regulation at issue is in fact state law by virtue of § 31 of the MBTA. Thus, the conflict analysis is different. Moreover, the Court ultimately held that "[i]f an individual is not qualified under federal law to drive a motor carrier within interstate commerce, it cannot be a violation of the handicappers' act to refuse to employ the individual as an interstate motor carrier driver." Dep't of Civil Rights, supra.

Plaintiff's reliance on Wilks v. Taylor School Dist., 174 Mich.App. 232, 435 N.W.2d 436 (1988), also is misplaced. In Wilks, the defendant motor carrier refused to hire the plaintiff as a school bus driver because its medical examiner determined that she was physically unfit to drive a bus and refused to issue a certificate of health, which was required of any individual desiring to be a school bus driver pursuant to a statute then in effect, M.C.L. § 257.316a; M.S.A. § 9.2016(1). Wilks at 234-235, 435 N.W.2d 436. If the plaintiff did not have the required certification, the defendant argued, it could not be expected to violate the law and hire the plaintiff, regardless of the plaintiff's actual ability to perform the job. Id. at 237, 435 N.W.2d 436. The case is clearly inapposite.

Similarly, Smith v. Dep't of Motor Vehicles, 163 Cal.App.3d 321, 209 Cal.Rptr. 283

(1984), is also inapposite. There, the California statute at issue did not directly prohibit the defendant from granting driving...