Sumner v. Goodyear Tire & Rubber Co.
| Decision Date | 10 February 1987 |
| Docket Number | 75109 and 75168,Docket Nos. 74523 |
| Citation | 398 N.W.2d 368,427 Mich. 505 |
| Parties | , 47 Fair Empl.Prac.Cas. (BNA) 621, 42 Empl. Prac. Dec. P 36,829 Daniel SUMNER, Plaintiff-Appellant, v. The GOODYEAR TIRE & RUBBER COMPANY, Defendant-Appellee. Carolyn KNIGHT, Plaintiff-Appellant, v. BLUE CROSS/BLUE SHIELD OF MICHIGAN, Defendant-Appellee. William J. ROBSON, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellee. |
| Court | Michigan Supreme Court |
Touma, Watson, Nicholson, Whaling, Fletcher & DeGrow, P.C. by Dan L. DeGrow, Janet M. Castello, Port Huron, for plaintiff-appellant, Sumner.
Dickinson, Wright, Moon, Van Dusen & Freeman, by Joseph A. Fink, and Brian J. Renaud, Lansing, for defendant-appellee, Goodyear Tire & Rubber Co.
Ronald Reosti & Associates, P.C. by Ronald Reosti, Mark Granzotto, Detroit for plaintiff-appellant, Knight.
Karen Smith Kienbaum, Kristine J. Galien, Detroit, for defendant-appellee, Blue Cross Blue Shield of Michigan.
Stark and Gordon by Deborah L. Gordon, Mark Granzotto, Detroit, for plaintiff-appellant, Robson.
Mark R. Flora, Detroit, for defendant-appellee General Motors Corporation; Terence V. Page, Neil H. Goodman, of counsel, Clark, Hardy, Lewis, Pollard & Page, P.C., Birmingham.
These cases come to us on the question of the application of the ninety-day period of limitation under the Fair Employment Practices Act and the three-year period of limitation under of the Michigan Civil Rights Act and the Handicappers' Civil Rights Act. They require a first-impression examination of the continuing violation theory, as developed by the federal courts in their interpretation of analogous federal antidiscrimination legislation. We adopt the continuing violation approach, concluding that an alleged timely actionable event will allow consideration of and damages for connected conduct that would be otherwise barred.
Plaintiff, William Robson, contracted polio as a child and, as a result, was forced to undergo surgery to fuse a number of his vertebrae. This operation left Robson with scoliosis (curvature of the spine). He alleges that the condition constitutes a handicap within the meaning of the Handicappers' Civil Rights Act, M.C.L. Sec. 37.1101 et seq.; M.S.A. Sec. 3.550(101) et seq. 1
Plaintiff was employed by defendant as a test driver at the General Motors' proving grounds facility from 1965 to 1978 and performed satisfactorily in that capacity. His scoliosis remained unchanged over the course of these years. During this period, plaintiff underwent periodic physical examinations by General Motors doctors pursuant to a company policy which required an annual review of test drivers' physical conditions to determine if they met certain medical standards outlined in a General Motors policy. Until 1978, Robson passed each of his yearly examinations in spite of his back condition.
On or about December 7, 1978, Robson was again examined by a company physician, this time by Dr. Tripp, who was new to the proving grounds. On the same day, Dr. Tripp issued his recommendations which concluded that Robson was to be removed from test driving because "[h]e does not meet the minimum requirements for classification as [a] driver." The evaluation form filed by Dr. Tripp listed the restriction as permanent. When he learned of Dr. Tripp's recommendation, Robson immediately contacted his supervisors, one of whom asked Dr. Tripp if he might make a further evaluation. Dr. Tripp said he would be glad to review any new evidence or documentation.
After Dr. Tripp's recommendations were issued, plaintiff was not permitted to do any test driving. He remained in the "test driving unit," however, and his salary and classification as a driver remained unchanged for approximately sixteen months. During that time he worked as a weather observer, in the mailroom, and as a receptionist-guard. On a number of occasions during that period, Mr. Robson spoke with his superiors at General Motors asking to be returned to test driving duties. One of those supervisors suggested that Robson get an outside opinion to serve as evidence to rebut Dr. Tripp's evaluation. In January, 1980, plaintiff obtained an evaluation from William Smith, head of orthopaedic surgery at the University of Michigan. The report dated January 24, 1980, indicated that
Plaintiff submitted this evaluation to Dr. Tripp, who considered the new evidence and reevaluated his own recommendations. His new report, dated March 19, 1980, concluded that plaintiff "[d]oes not meet performance standards for driver at this time." Dr. Tripp issued another "Medical Notice of Ability to Return to Work" form the next month, April 17, 1980, which stated, "No test road driving."
On May 16, 1980, plaintiff's classification was changed and he was transferred to the security department. After the transfer, Robson made a number of unsuccessful verbal requests to be transferred back.
In 1981, Dr. Tripp left the proving grounds and was replaced by Dr. Charles Kenderick. Some time after Dr. Kenderick assumed his position, Mr. Robson again went to his supervisors, who advised him to go to the new doctor and seek medical authorization to return to the test driver position. Mr. Robson then went to Dr. Kenderick requesting an explanation for his removal from the test driver position. Dr. Kenderick explained that General Motors medical guidelines were the basis for the restrictions.
Later, on August 26, 1981, the new medical director issued another medical report stating, "No test driving."
On February 12, 1982, plaintiff was laid off from his position in the security department. Had he remained a test driver, he would have had enough seniority to withstand layoff.
Plaintiff filed his complaint pursuant to the Handicappers' Civil Rights Act, in the Wayne Circuit Court on June 14, 1982. He sought reinstatement to the test driving position and back pay from the date of his termination. Defendant filed a motion for summary judgment, arguing that the complaint was filed outside the three-year statute of limitations.
The trial court granted defendant's motion, and the Court of Appeals affirmed, 137 Mich.App. 650, 357 N.W.2d 919 (1984), holding that Robson's cause of action accrued on December 7, 1978 (six months beyond the limitation period), the date he was initially removed from test driving.
Plaintiff, Daniel Sumner, a black man, was hired in 1971 by defendant Goodyear. In 1972, he came under the supervision of James Grace, a shift foreman. Plaintiff testified that Grace repeatedly verbally abused him, calling him "boy," "nigger," "cottonpicker," and other racially derogatory names. Plaintiff also alleged that Grace stood over him for long periods of time while he was working. While Grace denied engaging in such racial harassment, the testimony of other employees supported Sumner's version of the events. In addition, the union divisional chairman testified that Grace said of Sumner, "This is one nigger I am out to get if he doesn't straighten up."
Sumner also testified that on several occasions Grace attempted to prevent him from obtaining medical assistance when injured at work. This testimony was also supported. After one of these occasions, Grace, Sumner, a supervisor, and a union official met in Grace's office. Sumner testified that at this meeting Grace pointed his finger close to Sumner's face and shouted repeatedly, "Say what you want to say, do what you want to do," which Sumner took as an invitation to fight. However, at that time no fight occurred.
Sumner repeatedly complained to union officials who urged him to transfer to another building. He did so, but testified that Grace from time to time came to this other building to harass him and that at one point Grace told him that he was going to see to it that he lost his job.
After approximately a year of work in the new building, Sumner successfully bid on a servicing job. Unfortunately, Grace was the foreman under whom Sumner would have had to work in this new position. He therefore switched from the second to the third shift. The third-shift supervisor was Harold Bohnett. Sumner testified that on his first night on the new shift Bohnett said to him, "You must be Mr. Grace's nigger," and that this initiated a second period of harassment, only now with two supervisors, Bohnett and Grace, involved.
Some time later, Sumner missed a day of work. He testified that Bohnett threatened, "We have got you now, boy," and "Let me see you work your way out of this one, nigger."
Sumner testified that when he arrived at work the next night Bohnett immediately approached him, mumbled something derogatory, and began to laugh at him. Sumner claims that this was the straw which broke the camel's back. He followed Bohnett into the office and struck him. Grace and another company individual were also in the office. Sumner struck them as well, though he claims he only did so after they joined the altercation in Bohnett's defense. It is not disputed that Sumner threw the first punch and that the supervisory personnel required medical attention.
Sumner was given two consecutive two-day "cooling off" suspensions. On August 9, 1974, he was discharged from defendant's employ for attacking his supervisor.
Sumner filed his complaint with the Civil Rights Commission on November 7, 1974. Michigan's Fair Employment Practices Act, then in effect, required that a complaint of an alleged unlawful employment practice be filed within ninety days after the alleged act of discrimination. Sumner's complaint was filed exactly...
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