Opinion
No. 99-CV-73718-DT.
July 18, 2000.
OPINION AND ORDER REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
This Michigan Elliott-Larsen/Persons with Disabilities Act action is presently before the Court on Defendant Healthcare and Retirement Corporation of America's Motion for Summary Judgment. Plaintiff has responded to Defendant's Motion. Having reviewed the parties' briefs and supporting documents, and having heard the oral arguments of counsel at the hearing held on July 13, 2000, the Court is now prepared to rule on this matter. This Opinion and Order sets forth the Court's ruling.
II. FACTUAL BACKGROUND
Plaintiff Tiffany Harris is a former employee of Defendant Healthcare and Retirement Corporation of America ("HRC"). Harris was hired in May 1998 as a nursing assistant at Defendant's Georgian East Nursing Home in Grosse Pointe, Michigan. Her employment was terminated eight months later in January 1999.
When Plaintiff was hired in May 1998, she was provided with a detailed job description which set forth the physical demands of a nursing assistant position. Specifically, Plaintiffs job description provided:
Lifting 50 pounds maximum with frequent lifting, moving, and/or carrying objects weighing up to 50 pounds; Exerting considerable force frequently, and/or intermediate force constantly to move objects and residents. Reaching, handling, fingering, talking, hearing, visual near acuity, bending, stooping and walking.
See Defendant's Ex. 1, p. 6.
Plaintiff acknowledged in her deposition that the above-enumerated physical demands were all a part of her job. See Plaintiffs Dep., Defendant's Ex. 2, pp. 33-34.
In November 1998, Plaintiff discovered that she was pregnant. At a doctor's visit on January 6, 1999, her doctor placed her on work restrictions. Those written restrictions were provided to Plaintiffs employer the next day, January 7, 1999. The doctor's note stated that Ms. Harris was pregnant and had an expected due date of August 6, 1999. He further directed that Ms. Harris "may not lift over 15 lbs. [and] may not stand over 2 hrs. continuously." See Defendant's Ex. 3.
Plaintiff was given a light duty assignment that day, while other nursing assistants assumed her responsibilities for lifting the patients on the floor on which she was assigned. Later that afternoon, Plaintiff met with Georgian East's Human Resources Director, Elizabeth Christinidis, and the Director and Assistant Director of Nursing to discuss her work restrictions. Ms. Christinidis asked Plaintiff whether the restrictions might be temporary, i.e., whether they would perhaps only be in place for the first part of her pregnancy. See Christinidis Affidavit, ¶ 4. Plaintiff told Ms. Christinidis that the restrictions were not temporary; that they would be in place throughout the duration of her pregnancy. Id.
Because Plaintiffs work restrictions rendered her unable to perform the essential duties of a nursing assistant, Christinidis reviewed with Plaintiff her options.
Although Defendant had a "Rehabilitative Duty" policy in place at the time which provided for light duty assignments to allow employees to remain employed while under "limited duration" medical restrictions to "allow an employee to gradually return to the normally assigned, full-duty position" [see Defendant's Ex. 5], Plaintiff did not qualify, for a rehabilitative duty assignment under that policy because placement in a rehabilitative duty assignment pursuant to the policy was limited to medical restrictions not expected to exceed three months. See Defendant's Ex. 5, p. 3. Since Plaintiffs restrictions were expected to last for the duration of her pregnancy, i.e., for the next eight months, placement of Plaintiff in a rehabilitative duty assignment was precluded.
Plaintiff contends that she was not aware of the existence of this policy until she conducted discovery in this action. Although not referring specifically to HCR's "policy," Elizabeth Christinidis stated in her sworn deposition that she specifically informed Plaintiff on January 7, 1999 that she was not eligible for rehabilitative duty because it could not be anticipated that she would be able to gradually return to her normally assigned, full-duty position within a period of three months. See Christinidis Dep. ¶ 5.
Plaintiff also did not qualify for a leave of absence under her union contract. Under Article XXIII of the contract, to be eligible for a leave of absence, an employee must have at least nine months of seniority. [See Defendant's Ex. 4.] Plaintiff had been on the job barely eight months at the time that her doctor placed her on work restrictions.
Because Plaintiff did not qualify for rehabilitative duty or a leave of absence, Ms. Christinidis reviewed with Plaintiff the possibility of a transfer to another position and reviewed with her other open positions at Georgian East that she might be able to perform. Other than nurse's assistant positions, the only other available openings were for "dietary aides," positions which also had a lifting requirement similar to that of a nursing assistant.
The next day, January 8, 1999, Plaintiff met with Michelle Perry, the administrator of Georgian East who was joined by the directors she had met with the previous day. The administrator again explained to her that she did not qualify for a leave of absence or a rehabilitative duty assignment and explained to her that the only other openings Defendant had available were for dietary aides, which, as indicated, also had a lifting requirement. The administrator offered to have Plaintiff take the nursing assistant and the dietary aide job descriptions to her doctor to see if he thought she could do the jobs, but Plaintiff refused to do so. As a result, Plaintiff was removed from the payroll and informed that she would be considered for rehire when she was able to return to fullduty.
Plaintiff subsequently instituted this action. In her three-count Complaint, Plaintiff alleges that in terminating her employment, she was discriminated against because of her sex in violation of the Michigan Elliott-Larsen Civil Rights Act. (Count I). In Count II, Plaintiff alleges that by virtue of her pregnancy and medical work restrictions, she was a person with a disability under the Michigan Persons with Disabilities Civil Rights Act (the "PWDCRA") (formerly known as the "Handicappers' Civil Rights Act"), and that Defendant failed to accommodate her as it had done for allegedly similarly-situated disabled employees. Finally, in Count III, Plaintiff claims that Defendant perceived her as being disabled because of her pregnancy and discriminated against her on that basis by removing her from her job. Defendant has moved for summary judgment on all three counts. At oral argument, Plaintiffs counsel stated on the record that Plaintiff was withdrawing her sex discrimination claim. Therefore, only Plaintiffs disability claims remain for adjudication.
III. DISCUSSION
A. STANDARDS APPLICABLE TO MOTIONS FOR SUMMARY JUDGMENT
Summary judgment is proper "`if the pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Fed.R.Civ.P. 56(c).
Three 1986 Supreme Court cases — Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) — ushered in a "new era" in the standards of review for a summary judgment motion. These cases, in the aggregate, lowered the movant's burden on a summary judgment motion. According to the Celotex Court,
"Taken together the three cases signal to the lower courts that summary judgment can be relied upon more so than in the past to weed out frivolous lawsuits and avoid wasteful trials." 10A C. Wright, A. Miller, M. Kane, Federal Practice Procedure § 2727, at 35 (1996 Supp.).
In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof.
Celotex, 477 U.S. at 322.
After reviewing the above trilogy, the Sixth Circuit established a series of principles to be applied to motions for summary judgment. They are summarized as follows:
* Cases involving state of mind issues are not necessarily inappropriate for summary judgment.
* The movant must meet the initial burden of showing "the absence of a genuine issue of material fact" as to an essential element of the non-movant's case. This burden may be met by pointing out to the court that the respondent, having had sufficient opportunity for discovery, has no evidence to support an essential element of his or her case.
* The respondent cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must "present affirmative evidence in order to defeat a properly supported motion for summary judgment."
* The trial court no longer has the duty to search the entire record to establish that it is bereft of a genuine issue of material fact.
* The trial court has more discretion than in the "old era" in evaluating the respondent's evidence. The respondent must "do more than simply show that there is some metaphysical doubt as to the material facts." Further, "[w]here the record taken as a whole could not lead a rational trier of fact to find" for the respondent, the motion should be granted. The trial court has at least some discretion to determine whether the respondent's claim is plausible.
Betkerur v. Aultman Hospital Association, 78 F.3d 1070, 1087 (6th Cir. 1996). See also, Street v. J.C. Bradford Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989). The Court will apply the foregoing standards in deciding Defendant's Motion for Summary Judgment in this case.
B. PLAINTIFF DOES NOT HAVE A "DISABILITY" COGNIZABLE UNDER THE MICHIGAN PERSONS WITH DISABILITIES ACT
To establish a prima fade case of discrimination under the PWDCRA, a plaintiff must demonstrate (1) that she is disabled as defined by the PWDCRA, (2) that the disability is unrelated to her ability to perform the duties of a particular job, and (3) that she was discriminated against in one of the ways described in the statute. Lown v. JJ Eaton Place, 235 Mich. App. 721, 727, 598 N.W.2d 633, 636 (1999), app. denied, 606 N.W.2d 653 (1999); Rollert v. Dep't of Civil Service, 228 Mich. App. 534, 538, 579 N.W.2d 118 (1998). See also, Chmielewski v. Xermac, Inc., 457 Mich. 593, 602, 580 N.W.2d 817, 821 (1998) (construing the former "Handicappers Civil Rights Act").
The PWDCRA defines a "disability" as 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). . . 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 of the major life activities of that individual and is unrelated to the individual's qualifications for employment or promotion.
The statute defines "unrelated to the individual's ability" as meaning, "with or without accommodation, an individual's disability does not prevent the individual from . . . performing the duties of a particular job or position." Id
With respect to accommodations, the Act statutorily limits the employer's obligation to restructure an employee's job or to alter an employee's work schedule requiring such job restructuring or schedule alteration only with respect to minor or infrequent duties relating to the disabled person's job. M.C.L. § 37.1210(12) (emphasis added).
Plaintiff Harris claims in this case that she was discriminated against in violation of the PWDCRA on the basis of her pregnancy and her related medical work restrictions precluding her from lifting more than 15 pounds.
The Michigan Supreme Court, however, has unequivocally determined that pregnancy, by itself, or even with a work restriction prohibiting the employee from lifting 25 pounds or more, is not a substantial impairment of a major life activity under the Michigan statute. See Koester v. City of Novi, 458 Mich. 1, 580 N.W.2d 835, 838-39 (1998). In Koester, a female Novi police officer became pregnant. Her doctor placed her on work restrictions limiting her from lifting more than 25 pounds. These restrictions rendered the plaintiff unable to fulfill the duties of road patrol officer. She asked for a transfer to a temporary assignment as an assistant court officer. When she did not get that assignment, she sued the City. Her claims of disability discrimination were dismissed by the trial court on summary disposition. The Michigan Court of Appeals and the Michigan Supreme Court affirmed the dismissal of the disability claims.
In finding that Plaintiff Koester's pregnancy and related work restrictions did not constitute a legally cognizable disability under the Michigan Handicappers Civil Rights Act, the predecessor of the PWDCRA, the Michigan Supreme Court explained:
The only significant change when the Michigan legislature recast the HCRA as the PWDCRA was to change all references to the terms "handicap" and "handicapped" to "disability" and "disabled."
[E]ven with the [broadened] amendments to the HCRA, pregnancy, by itself does not typically "substantially limit 1 or more of the major life activities" of an individual. We recognize that at times, certain conditions associated with pregnancy may rise to the level of a substantial limitation of a major life activity. Therefore, in order to determine whether a pregnant person is "handicapped" according to the definition contained in the HCRA, a reviewing court must examine the particular facts and circumstances of the pregnancy to determine whether it substantially limits one or more major life activities of the employee.
In this case, because of plaintiff s pregnancy, she was placed on a restriction limiting her from lifting twenty-five pounds or more. She claims that she was removed from her road patrol duties because of her inability to lift twenty-five pounds. We hold that the restriction limiting plaintiffs lifting abilities to twenty-five pounds is not a substantial impairment of a major life activity. Therefore plaintiff has not stated a claim under the HCRA.
380 N.W.2d at 839. See also, Lown v. JJ Eaton Place, 235 Mich. App. 721, 598 N.W.2d 633 (1999), app. denied, 606 N.W.2d 653 (1999), and federal cases cited therein (lifting is not a "major life activity" under the PWDCRA, hence, 25-pound lifting restriction not a substantial impairment to a major life activity.)
In this case, there are no facts or circumstances that would render Plaintiffs pregnancy substantially limiting in one or more major life activities. Plaintiffs pregnancy proceeded normally and in August 1999, she delivered a healthy baby girl.
The foregoing makes clear that in this case, Plaintiff Harris has no recourse under the Michigan Persons with Disabilities Act. Her pregnancy, even with her 15-pound lifting restriction, does not constitute a substantial impairment to a major life activity under the Act. Therefore, her claims of discrimination under the PWDCRA in Counts II and III will be dismissed.
As indicated above, Plaintiffs counsel stipulated on the record that Plaintiff is dropping her Elliott-Larsen sex discrimination claim. Therefore, Count I of Plaintiff s Complaint will be dismissed, as well.
IV. CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment be, and hereby is, GRANTED.
IT IS FURTHER ORDERED that this case be DISMISSED in its entirety, with prejudice. Let Judgment be entered accordingly. a