MICHALSKI v BAR-LEVAV
Docket No. 114107
Supreme Court of Michigan
May 1, 2001
463 Mich. 723 | 625 N.W.2d 754
Argued January 16, 2001 (Calendar No. 1).
Dоcket No. 114107. Argued January 16, 2001 (Calendar No. 1). Decided May 1, 2001.
Claudia Michalski and her husband brought an action in the Oakland Circuit Court against her employer, Reuven Bar-Levav, M.D., for damages under the Handicappers’ Civil Rights Act, alleging harassment after she informed the defendant of a tentative diagnosis of suspected multiple sclerosis. The court, Barry L. Howard, J., after discovery, granted summary disposition for the defendant, concluding that there was no evidence that the condition the plaintiff was perceived to have was a condition that substantially limits one or more major life activities, and that there was no evidence to suggest that during the time at issue the defendant had any knowledge that one or more of the plaintiff‘s major life activities was limited. The Court of Appeals, MARKEY, P.J., and SAWYER, J. (WHITBECK, J., concurring in part and dissenting in part), reversed in an unpublished opinion per curiam, holding that the plaintiff had presented sufficient evidence of handicap discrimination and that the mere fact that she was symptom-free should not preclude her cause of action (Docket No. 204033). The defendant appeals.
In an opinion by Justice WEAVER, joined by Chief Justice CORRIGAN, and Justices TAYLOR, YOUNG, and MARKMAN, the Supreme Court held:
The plaintiff did not present sufficient evidence to create a question of fact сoncerning whether the defendant regarded her as having a determinable physical or mental characteristic that substantially limited one or more of her major life activities.
1. Under the HCRA, an employer may not discharge or otherwise discriminate against an employee with respect to compensation or the terms, conditions, or privileges of employment because of a handicap unrelated to the ability to perform the duties of a particular job or position. To establish a prima facie case of handicap discrimination, a plaintiff must demonstrate a handicap as defined by the HCRA that is unrelated to the ability to perform the duties of the job, and discrimination as enumerated in the statute.
2. To qualify for protection under subsection (iii), an employee must be regarded as having a determinable physical or mental
3. Because the plaintiff did not present sufficient evidence to create a question of fact with respect to whether the defendant regarded her as having a condition that substantially limited one or more of her major life activities, reversal and reinstatement of the summary disposition is required.
Reversed and remanded.
Justice KELLY, joined by Justice CAVANAGH, dissenting, stated that the majority‘s use of a narrow present-tense standard in interpreting the scope of subsection (iii) gives a meaning that the Legislature could not have intended. The well-settled purрose of the Handicappers’ Civil Rights Act is that a plaintiff need not display symptoms of a handicap to be protected. Rather, subsection (iii) is violated if an employer discriminates because it believes the employee is handicapped, even if the belief is erroneous. Under the majority‘s rendering, a subsection (iii) claim becomes virtually indistinguishable from a claim under subsection (i). A better view would recognize that it is immaterial whether an employer who perceives an employee as having a substantial limitation, believes it to be present or future. If the employer discriminates because it perceivеs the employee to be handicapped or is becoming handicapped, it violates subsection (iii). Thus, subsection (iii) should be interpreted to contemplate a finding of discrimination for adverse acts against an employee arising from an employer‘s perception of a handicap and the perception that the handicap threatens work, even in the future.
The plaintiffs have submitted sufficient evidence to create a genuine issue of fact whether the defendant discriminated against Ms.
Gary A. Kozma for the plaintiffs-appellees.
John A. Zick for the defendants-appellants.
Amici Curiae:
Kienbaum, Opperwall, Hardy & Pelton, P.L.C. (by Thomas G. Kienbaum, Theodore R. Opperwall, and Noel D. Massie), for Blue Cross and Blue Shield of Michigan.
Clark Hill, P.L.C. (by Duane L. Tarnacki, F.R. Damm, and Mary C. Dirkes), for Michigan Manufacturers Association.
WEAVER, J. Following a motion for summary disposition brought pursuant to MCR 2.116(C)(10), plaintiff‘s Handicappers’ Civil Rights Act claim was dismissed by the circuit court.1 The Court of Appeals reversed. The issue before this Court is whether the Court of Appeals properly concluded that plaintiff presented sufficient evidence to create a question of fact with respect to whether defendant regarded her as having a determinable physical or mental characteristic that substantially limited one or more of her
I
On September 1, 1995, plaintiff signed an employment contract with defendant to begin work as an executive secretary on September 11, 1995.2 On September 4, 1995, plaintiff experienced numbness and tingling on her left side, which persisted for four days. She was seen by her family doctor, who referred her to Dr. Green, a neurologist. Plaintiff was able to begin work as scheduled. On September 23, 1995, plaintiff saw Dr. Green, who told her he suspected multiple sclerosis, but was unable to make a positive diagnosis at that time. Plaintiff testified at her deposition that she told defendant and others at the office about this tentative diagnosis. Plaintiff maintains that, after shе revealed her condition, defendant undertook a course of harassment, which she attributed to his perception of her medical condition.3
Dr. Green saw plaintiff again on October 28, 1995. At this time, plaintiff had no symptoms of multiple sclerosis, and Dr. Green indicated on her medical record that she was “doing fine, feels great.” Plaintiff continued to work without incident until Decem-
Plaintiff brought this action alleging a viоlation of the Handicappers’ Civil Rights Act (HCRA) and a claim for intentional infliction of emotional distress.4 After discovery, defendant moved again for summary disposition pursuant to MCR 2.116(C)(10).5 The circuit court granted the motion, concluding:
[T]here is no evidence that the condition that Plaintiff was perceived to have was a condition which substantially limits one or more for [sic] major life activities. And no evidence to suggest that the Defendant had any knowledge that one or more of the major life activities was limited.
On January 26, 1999, the Court of Appeals issued a two-to-one decision affirming the dismissal of the intentional infliction of emotional distress count, but reversing the dismissal of plaintiff‘s handicap discrimination claim because it believed that plaintiff had presented sufficient evidence to establish a prima facie case of handicap discrimination.6 Relying on
Noting that under Sanchez, the focus is on the employer‘s conduct and belief or intent, and not merely on the employee‘s condition, the majority reasoned that the mere fact that plaintiff was symptom free should not preclude her сause of action. The Court of Appeals explained that an “individual with multiple sclerosis can lead a normal life until the next exacerbation, which occurs with varying frequency and degree.” Similarly, individuals with handicaps such as epilepsy and asthma may have periods of time where they are symptom free. Although plaintiff was not definitively diagnosed with multiple sclerosis, the Court of Appeals reasoned that applying Sanchez, in which the defendant based his employment decision on rumors that the plaintiff had AIDS, there was sufficient evidence to establish that in the present case, defendant may have regarded plaintiff as handicapped. The Court of Appeals noted that plaintiff‘s deposition testimony established that she informed defendant from the beginning of her employment that her doctors suspected she had multiple sclerosis. Further, plaintiff periodically took some time off during September and October 1995 to undergo testing for multiple sclerosis and to receive treatment to lessen the side effects of some of the testing procedures.7
Judge WHITBECK dissented. His dissent focused on the fact that the definition of “handicap” was аltered by a 1990 amendment to the HCRA8 to require that the physical or mental characteristic in question substantially limit one or more major life activities of the individual. The version of the statute in effect at the time of the events in Sanchez did not include this requirement; thus, it was improper for the majority to rely on that case as support for its conclusion. The dissent reasoned that, under the applicable version of the HCRA, the plain language of the statute required defendant to perceive plaintiff as having a characteristic that substantially limited a major life activity. Because plaintiff did not present any evidence that defendаnt regarded her as having a condition that substantially impaired a major life activity, the dissent concluded that summary disposition was properly granted.
This Court granted leave to appeal. 461 Mich 1020 (2000).
II
A motion for summary disposition brought pursuant to MCR 2.116(C)(10) tests the factual support of a plaintiff‘s claim and is subject to de novo review. Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999). In reviewing a motion for summary disposition under MCR 2.116(C)(10), the court consid-
The HCRA provides that “[a]n 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 handicap9 that is unrelated to the individual‘s ability to perform the duties of a particular job or position.”
The act, as amended in 1990, defines handicap for employment related purposes as follows:
(i) A determinable physical or mental characteristic of an individual, which may result from disease, injury, congenital condition of birth, or functional disorder, if the characteristic:
(A) For purposes of article 2, substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual‘s ability to perform the duties of a particular job or position or substantially limits 1 or more
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(ii) A history of a determinable physical or mental characteristic described in subparagraph (i).
(iii) Being regarded as having a determinable physical or mental characteristic described in subparagraph (i). [
MCL 37.1103(e) ;MSA 3.550(103)(e) .]10
Relying on subsection (iii), plaintiff argued that defendant undertook a course of harassment because he perceived her as handicapped. Thus, resolution of this matter requires us to construe this subsection of the statute.
Where statutory language is clear and unambiguous, its plain meaning reflects legislative intent, and judicial construction is not permitted. McKenzie v Auto Club Ins Ass‘n, 458 Mich 214, 217; 580 NW2d 424 (1998). In this case, we find that the statutory language is clear and unambiguous.
Considering the statute in its entirety, to qualify for protection under subsection (iii), an employee must be “regarded as having a determinable physical or mental characteristic,” as that characteristic is described in subsection (i) (emphasis added). Subsection (i)(A) describes the determinable physical or mental characteristic as one that “substantially limits 1 or more of the major life activities of that individual ....” (Emphasis added.) The characteristic
Thus, while a plaintiff need not actually have a determinable physical or mental characteristic, to qualify as handicapped under subsection (iii), the plain statutory language does require that the plaintiff prove the following elements: (1) the plaintiff was regarded as having a determinable physical or mental characteristic; (2) the perceived characteristic was regarded as substantially limiting one or more of the plaintiff‘s major life activities; and (3) the perceived characteristic was regarded as being unrelated either to the plaintiff‘s ability to perform the duties of a particular job оr position or to the plaintiff‘s qualifications for employment or promotion.11 Only the first two elements are at issue in this case.
We agree with the Court of Appeals dissent that reliance on Sanchez as support for the conclusion reached by the Court of Appeals majority is misplaced. The version of the HCRA in effect at the time of the events in Sanchez contained no requirement that the determinable physical or mental characteristic substantially limit a major life activity. Thus, under the pre-1990 version of the statute, a plaintiff only needed to be regarded as having a determinable physical or mental characteristic.12
Thus, to qualify for coverage under subsection (iii), plaintiff must be regarded as presently having a characteristic that currently creates a substantial limitation of a major life activity.14 In this case, plaintiff did
The Legislature could have defined protected activity to include confrontation, as in the False Claims Act. It could have allowed employees to recover without a showing of reporting or being about to report. It did neither. Instead, the Legislature defined protected activity as reporting a violation or being about to report one. The Legislature can and may rewrite the statute, but we will not do so. [Chandler v Dowell Schlumberger, Inc, 456 Mich 395, 405-406; 572 NW2d 210 (1998).]
Consequently, while the Legislature may, and perhaps should, аmend the HCRA to include within its scope of protection discrimination based on the possibility of a future handicap, we decline to do so by construing the HCRA in a manner inconsistent with its plain language.
Although plaintiff also argued in the Court of Appeals that she was actually handicapped pursuant to subsection (i) of the HCRA, the Court of Appeals did not address this argument. Therefore, we remand this case to the Court of Appeals for consideration of plaintiff‘s actual handicap theory.
In conclusion, we find that, in order to succeed on a claim brought under subsection (iii), the plain language of the statute requires an emрloyee prove (1) that the employee was regarded as having a determinable physical or mental characteristic, (2) that the perceived characteristic was regarded as substantially limiting one or more of the plaintiff‘s major life activities, and (3) that the perceived characteristic was regarded as being unrelated either to the plaintiff‘s ability to perform the duties of a particular job or position or to the plaintiff‘s qualifications for employment or promotion.
Moreover, depending on whether the claim is brought under subsection (i) (“actual” handicap) or subsection (iii) (“perceivеd” handicap), because of the present-tense language used in the statute, courts must evaluate the physical or mental characteristic at issue either (1) as it actually existed at the time of the plaintiff‘s employment, or (2) as it was perceived at the time of the plaintiff‘s employment.
Because plaintiff failed to present sufficient evidence to create a question of fact regarding whether the defendant regarded her as having a characteristic that substantially limited one or more of her major life activities, we reverse the Court of Appeals and reinstate the trial court‘s ruling granting summary disposition in defendant‘s favor on plaintiff‘s claim that she was regarded as handicapped pursuant to subsection (iii). We remand to the Court of Appeals for consideration of plaintiff‘s actual handicap theory.
CORRIGAN, C.J., and TAYLOR, YOUNG, and MARKMAN, JJ., concurred with WEAVER, J.
Plaintiffs brought their claim pursuant to the Michigan Handicappers’ Civil Rights Act (HCRA).1 The HCRA prohibits employment discrimination on the basis of a handicap. Its definition of a handicap includes “[b]eing regarded as having a determinable physical or mental characteristic” that “substantially limits 1 or more of the major life activities of that individual ....”
In interpreting the scope of subsection (iii) of the HCRA using a narrow “present tense” standard, the majority gives it a meaning that the Legislature could not have intended. This Court has declined to embrace a literal construction of statutory language where such literalism would produce unreasonable and unjust results inconsistent with the purpose of the statute. DiBenedetto v West Shore Hosp, 461 Mich
The majority notes that the HCRA was amended in 1990. The amendments effected a slight change in the definition of a disability, but did not alter the well-settled purpose of the act. They did nothing to change the legislative intent or the breadth of the “regarded as” prong as stated in the act and described in Sanchez, supra. Under Sanchez, this Court determined that a plaintiff need not display symptoms of a handicap to be protected by the act. Rather, subsection (iii) is violated if an employer discriminates because it believes the employee is handicapped, even if the belief is erroneous.
The majority‘s “present tense” rendering of subsection (iii) whittles the “regarded as” prong down to a nubbin. It leaves a subsection (iii) claim virtually indistinguishable from a claim under subsection (i).
Subsection (i) extends protection to those who have an “actual handicap.” In order to prevail under that subsection, an employee must show that he suffers from the symptoms of an actual disease that impedes work. In addition, the employer must be
For example, Ms. Michalski could not succeed merely by showing that Dr. Bar-Levav took an adverse action against her because (1) he perceived that she was in a dormant stage of MS and that (2) his perception was that she was becoming handicapped. Under the majority‘s “present tense” test, she would have to show that (1) she actually exhibited symptoms typical of MS, (2) her employer perceived them аs limiting her life activities, and (3) acted on that perception by taking adverse action against her.
Additionally, despite being required to prove the manifest existence of actual symptoms, to succeed under subsection (iii), plaintiff would have to show an absence of the perceived handicapping disorder. Indeed, if she actually suffered from the handicap, recovery would be available under subsection (i), obviating any need for subsection (iii). Hence, the majority‘s holding leaves such a narrow avenue for recovery under subsection (iii) that it renders the “regarded as” prong of the HCRA a virtual dead letter.
Courts must, as far as possible, give effect to every phrase, clause, and word of a statute. People v Borchard-Ruhland, 460 Mich 278, 285; 597 NW2d 1 (1999). Moreover, courts should avoid unnecessarily reading any portion of a statute out of existence because of rigid adherence to the doctrines of literalism and plain meaning. See, e.g., Lane v Pena, 518 US 187, 199-200; 116 S Ct 1092; 135 L Ed 2d 486 (1996)
The Legislature could not have intended the literal “present tense” interpretation embraced by the majority. It is in derogation of established principles of statutory construction.
A better view would recognize that it is immaterial whether an employer who perceives an employee as having a substantial limitation, believes it to be “present” or “future.” If the employer discriminates because it perceives the employee is handicapped or is becoming handicapped, it violates subsection (iii) of the act. Thus, subsection (iii) should be interpreted to contemplate a finding of discrimination for advеrse acts against an employee arising from (1) an employer‘s perception of a handicap and (2) the perception that the handicap threatens work, even in the future.
The definition of “handicap” used in the HCRA is similar to that used in the federal Americans With Disabilities Act (ADA). ADA case law and regulations can be guides for us in interpreting the HCRA. See Stevens v Inland Waters, Inc, 220 Mich App 212, 216-217;
There are two apparent ways in which individuals may fall within this statutory definition: (1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting imрairment substantially limits one or more major life activities. In both cases, it is necessary that a covered entity entertain misperceptions about the individual—it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting.
The Court then identified that an individual may fall within the definition in another way. The ADA, it said, also protects individuals “who are regarded as impaired and who, as a result, are substantially limited in a major life activity.” Id. at 489, quoting School Bd of Nassau Co v Arline, 480 US 273, 284; 107 S Ct 1123; 94 L Ed 2d 307 (1987). In other words “having such an impairment means [having] a physical or mental impairment that substantially limits major life activities only аs a result of the attitudes of others toward such impairment ....”
In the Michalskis’ case, we are reviewing a trial court‘s decision to grant summary disposition. We must consider all the evidence and draw all reasonable inferences in the Michalskis’ favor. Bertrand v Alan Ford, Inc, 449 Mich 606, 617-618; 537 NW2d 185 (1995).
The majority has acknowledged that “[Ms. Michalski] informed defendant that she had been tentatively
Plaintiffs presented Dr. Bar-Levav‘s own testimony thаt he recognized MS as a degenerative neurological disease with an outcome that can be “very bad.” They alleged that, after learning that Ms. Michalski was suspected of having MS, Dr. Bar-Levav routinely criticized and berated her work, speech and appearance. When she complained of her symptoms, they asserted, he told her that God was punishing her.
Considering the factual allegations and supporting documents in a light most favorable to plaintiffs, I would find that a jury could infer that defendant regarded Ms. Michalski as handicapped. In addition, it could conclude that she was not handicapped and that defendаnt acted on his faulty perception in violation of the HCRA.
Plaintiffs created a genuine issue of material fact concerning whether Dr. Bar-Levav erroneously regarded Ms. Michalski as substantially limited in a major life activity because he believed her afflicted with MS. Thus, I would affirm the Court of Appeals reversal of the trial court grant of summary disposition and would remand this case to the trial court for further proceedings.
CAVANAGH, J., concurred with KELLY, J.