Opinion
Case No. 2:02-CV-132
November 17, 2003
OPINION
Plaintiff Gary Oliver filed a two-count complaint against defendants Cummins Great Lakes, Inc., ("Great Lakes") and Cummins Npower ("NPower") for alleged discriminatory and unlawful employment actions. Plaintiff contends that defendants violated the Michigan Persons With Disabilities Civil Rights Act, M.C.L. § 37.1101 et seq. ("PWDCRA") and the Michigan Worker's Disability Compensation Act, M.C.L § 418.101 et seq. ("DCA"). Motions for summary judgment were filed by defendants and the Court held a hearing on those motions. During the hearing, the Court dismissed all of plaintiff's claims against the defendants, with the exception of plaintiff's claim that a negative job recommendation made by an employee of defendant Great Lakes during a meeting with defendant NPowers' hiring committee constituted an adverse employment action, under the PWDCRA. In addition to ordering briefing on that specific issue, the Court also directed the parties to brief whether successor liability attached to defendant Npower, assuming that a negative job recommendation provided a viable legal claim against defendant Great Lakes. The Court will grant defendants' motion for summary judgment on the remaining claim because plaintiff cannot establish that a negative job recommendation constitutes a basis for liability under the PWDCRA.
I. FACTUAL AND PROCEDURAL BACKGROUND
From 1973 until March of 2002, plaintiff worked for Great Lakes as a service technician. During that time, plaintiff sustained several injuries and filed over 30 workers' compensation claims. Relevant for this discussion is an injury plaintiff reported to defendant Great Lakes in July 2001 that involved a chronic chest and sternum pain allegedly caused and/or aggravated by plaintiff's job. Plaintiff also indicated at that time that he had been regularly taking Percocet, a pain-relieving drug, in the morning and the evening. Plaintiff was then examined by a physician chosen by defendant Great Lakes. The physician restricted plaintiff from driving within eight hours of taking Percocet and from heavy torquing and wrenching. At that time, plaintiff had been classified as an N5 service technician. In August of 2001, Great Lakes reclassified plaintiff as an N4 technician based on plaintiff's driving restriction, since the N5 position required driving to the customer's location to provide service and the N4 position did not require driving. The switch from the N5 position to the N4 position also involved a corresponding pay decrease.
Plaintiff asserted that he was re-classified because defendant Great Lakes perceived him as being disabled. However, defendant Great Lakes contends that the re-classification was made as a result of a medical restriction. Following the reclassification, plaintiff continued to perform his job as an N4 diesel technician.
Subsequently, on March 19, 2002, defendant Great Lakes informed its employees that its assets, as well as the assets of two other distributorships, were to be purchased by defendant Npower, effective April 1, 2002. Defendant Great Lakes told its employees that all of its operations would cease and all employees would be terminated as of that date. All Great Lakes employees were, however, invited to apply for a position with NPower but no Great Lakes employee knew at that point whether he or she would be hired by NPower. Plaintiff proceeded to apply for a position as a service technician with NPower.
Due to economic reasons, defendant NPower determined that a reduction in staff and resources was needed as part of its asset purchase. NPower initially estimated a need for a staff reduction of about 10% of the 532 employees from the three distributorships NPower had purchased. NPower, in undertaking the asset purchase, formed a Senior Management Leadership Team that was to discuss and evaluate the necessity of every position in the company and was to make a hire/no hire decision on every potential employee.
On February 21, 2002, NPower Senior Management Leadership Team, comprised of various management personnel as well as the president and CFO of Finance, held a meeting to discuss reduction in force, and various other matters pertaining to the asset purchase. Also invited to the February meeting were two Great Lakes employees, Julie Salemi, manager of human resources and Rick Vohl, general manager of power generation. At the time of that meeting, Ms. Salemi was neither an employee of NPower, nor did she know whether she was going to be hired by NPower. Additionally, there is no evidence that either Ms. Salemi or Mr. Vohl was part of the decision-making process.
As part of the discussion, Ms. Salemi, among others, was asked to identify people that she would not hire. Ms. Salemi mentioned several people she would not hire, including plaintiff. However, and as plaintiff notes in his discussion of facts, Ms. Salemi was not asked at the meeting to give reasons why she would not rehire or hire certain people.
The Leadership Team then agreed to undertake additional research before deciding which of the Great Lakes employees would not be hired. Plaintiff, along with 63 other individuals from the various distributorships, was subsequently informed on March 28, 2002, that he would not be hired by NPower.
Subsequently, plaintiff brought claims against defendant Great Lakes, under the PWDCRA and the Michigan Worker's Disability Compensation Act, M.C.L.418.101et seq. ("DCA"), alleging that Great Lakes (1)discriminated in its decision to demote plaintiff from an N5 position to an N4 position and (2) discriminated in its decision to discharge plaintiff in March of 2002. Plaintiff also filed claims, under the same statutes, against Npower for discriminatory failure to hire and retaliatory failure to hire. Defendants moved for summary judgment on all of these claims.
This Court held a hearing on defendants' motions for summary judgment. The Court, after considering the arguments and the law, denied plaintiff's claim against Great Lakes for discriminatory demotion because the Court found no factual or legal basis for the claim and no possibility that the claim could be asserted against Great Lakes when the medical letter specifically stated that plaintiff should not drive while on Percocet. The Court also noted that plaintiff had failed to provide evidence that the medical restriction had been lifted prior to or since the reclassification. The Court also dismissed plaintiff's claim against Great Lakes for discriminatory discharge and retaliation, finding that since everyone was discharged due to the asset sale, plaintiff was not treated differently. The Court also dismissed any claim against NPower based on direct liability for discriminatory or retaliatory failure to hire plaintiff due to lack of evidence that NPower had any knowledge of plaintiff's restrictions or worker's compensation claims.
The Court, however, requested additional briefing as to (1) whether the PWDCRA assigns liability to a current or former employer/non-decisionmaker for making a negative recommendation to a potential employer when there was no communication of any improper motive to the party making the decision; and (2) provided that the PWDCRA does contemplate such liability, whether NPower could be held liable for failing to hire plaintiff under a successor liability theory for relying on the recommendation.
In his supplemental brief, plaintiff contends that Ms. Salemi illegally took into account plaintiff's health and worker's compensation history in contravention of the PWDCRA when making her recommendation to the Leadership Management Team. Thus, plaintiff argues, (1) the negative job recommendation was a prohibited employment practice under the PWDCRA, and (2) defendant NPower is liable as a successor on that claim. Defendants move for summary judgment arguing that a negative job recommendation from an employee of Great Lakes to co-defendant NPower does not constitute a prohibited practice, particularly where no evidence exists that any improper motive was communicated as part of that recommendation. Because the Court concludes that defendant Great Lakes cannot be held liable for a negative job recommendation under the PWDCRA, the Court need not reach the claim against NPower based on successor liability since successor liability cannot attach without predecessor liability. Herbolsheimer v. SMS Holding Co., 239 Mich. App. 236, 252 (2000) (noting that simply being a successor is not enough for liability because there must be an allegedly viable claim against the predecessor in order for the case to survive a motion for summary disposition).
II. ANALYSIS
A. Standard
Defendants' motions for summary judgment require the Court to look beyond the pleadings and evaluate the facts to determine whether there is a genuine issue of material fact that warrants a trial. See generally Barnhart v. Pickrel, Schaeffer Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir. 1993). An issue of fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact concerns "material" facts only if establishment thereof might affect the outcome of the lawsuit under governing substantive law. Id. A complete failure of proof concerning an essential element of plaintiff's case necessarily renders all other facts immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Production of a "mere scintilla of evidence" in support of an essential element will not forestall summary judgment. Anderson, 477 U.S. at 251. The nonmovant must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Ind. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The Court has discretion to grant the motion if a claim is, in the factual context, implausible. Id.; Barnhart, 12 F.3d at 1389.
B. Argument
The PWDCRA prohibits employers from discriminating against individuals because of an actual or perceived physical disability. M.C.L. § 37.1202. Where there is no direct evidence of discrimination, as plaintiff concedes is the case here, plaintiff may establish discrimination by setting out a prima facie case of discrimination under the PWDCRA. Plaintiff must demonstrate that (1) he is disabled as defined by the statute, (2) the disability is unrelated to his ability to perform the duties of his job, and (3) he was discriminated against in one of the ways described in the statute. Lown v. JJ Eaton Place, 235 Mich. App. 721, 727 (1999). See also Hopkins v. Electronic Data Systems Corp., 196 F.3d 655, 660 (6th Cir. 1999).
Because plaintiff fails to establish that a negative job recommendation constitutes an adverse action under the PWDCRA, thus failing to satisfy the third element of the prima facie case, the Court need not determine (1)whether plaintiff has demonstrated that he was disabled or perceived to be disabled as defined by statute, and (2)whether that disability is unrelated to his ability to perform the duties of his job.
Plaintiff argues that Ms. Salemi's recommendation constitutes a prohibited practice under M.C.L. § 37.1202(1)(a), (b), and (c). In pertinent part, M.C.L. § 37.1202 states:
Except as otherwise required by federal law, an employer shall not:
(a) Fail or refuse to hire, recruit, or promote an individual because of a disability or genetic information that is unrelated to the individual's ability to perform the duties of a particular job or position.
(b) Discharge or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment, because of a disability or genetic information that is unrelated to the individual's ability to perform the duties of a particular job or position.
(c) Limit, segregate, or classify an employee or applicant for employment in a way which deprives or tends to deprive an individual of employment opportunities or otherwise adversely affects the status of an employee because of a disability or genetic information that is unrelated to the individual's ability to perform the duties of a particular job or position.Id. Plaintiff contends that M.C.L. § 37.1202(1)(a) applies to Ms. Salemi's recommendation that plaintiff not be hired because it fits within the broad language of the "fail or refuse to hire, recruit, or promote" provision of that section. Plaintiff further contends that Ms. Salemi "otherwise discriminated" with respect to his employment terms, conditions, or privileges of employment, in contravention of M.C.L. § 37.1202(1)(b), by limiting his ability to continue working for Great Lakes and then NPower. Finally, plaintiff argues that Ms. Salemi, by singling out plaintiff, and recommending that NPower not hire him, deprived or tended to deprive plaintiff of an employment opportunity with NPower, prohibited under M.C.L. § 37.1202(1)(c).
As noted above, this Court has already ruled that Great Lakes' discharge of plaintiff does not confer liability for the simple reason that all Great Lakes' employees were discharged. Thus, to the extent that plaintiff contends that Ms. Salemi's job recommendation limited his ability to continue working for Great Lakes, in contravention of M.C.L. § 37.1202(1)(b), plaintiff's claim fails.
To the extent that plaintiff contends that NPower's failure to hire plaintiff based on a negative job recommendation creates liability against Great Lakes, that claim also fails. Unless defined in the statute, every word or phrase of a statute should be accorded its plain and ordinary meaning, taking into account the context in which the words are used. People v. Lee, 447 Mich. 552, 557-58 (1994). Further, in interpreting provisions of the PWDCRA, federal precedents are persuasive. Chmielewskl v. Xermac, Inc., 457 Mich. 593, 601-02 (1998).
The plain language of the PWDCRA does not support plaintiff's contention that a negative job recommendation, without more, made by a current or former employer to a potential employer constitutes an illegal action. Indeed, unlike the statute at issue here, states that have decided to include a negative job reference as an unfair or prohibited practice specifically incorporate such language into the text of the statute. See Iowa Code § 216.6(1)(a) . Plaintiff would have the Court rewrite the statute to include a negative job recommendation or reference among the prohibited practices listed. This the Court will not do.
The pertinent language of that statute states, "It shall be an unfair or discriminatory practice for any: (a)Person to refuse to hire, accept, register, classifiy, or refer for employment, to discharge any employee . . . because of the . . . disability of such applicant or employee." Iowa Code § 216.6(1)(a) (emphasis added).
Indeed, plaintiff's counsel conceded during the hearing that nothing in the statute appears to create such liability.
Plaintiff further instructs the Court that a broad reading of the statute allows for the liability it contemplates. However, the Court is unable to reach this conclusion from the language of the statute. Moreover, the Court has not been provided with any legislative history suggesting that the PWDCRA or its federal counterpart, the Americans with Disabilities Act, contemplates holding a former or current employer liable for a negative job recommendation to a potential employer, when no discriminatory reason for the recommendation was communicated to the potential employer.
Additionally, plaintiff fails to cite any case law supporting his position. Rather, plaintiff directs the Court to Chiles v. Machine Shop, Inc., 238 Mich. App. 462 (2000), and cites a long passage that plaintiff contends discusses the intended scope of the PWDCRA. However, the Court does not find either the facts or the discussion in Chiles applicable in this matter.
In Chiles, the plaintiff began working for a corporation that later split into several separate corporations. The plaintiff then actually worked for the defendant, one of the offshoots of the initial corporation, but was classified as an employee of a different corporation, also an offshoot of the initial corporation. Id. at 465. After the plaintiff was laid off, he brought a claim alleging disability discrimination against the defendant. Id. at 466-67.
The defendant contended that it was not a proper party to the suit because it was not technically the plaintiff's employer. Id. at 461. However, the Michigan Court of Appeals noted that the defendant clearly had the right to hire, fire, and discipline the plaintiff and found that the defendant was the plaintiff's employer. Id. Additionally, the court noted that the PWDCRA contemplated actions taken by an employer before an employment relationship exists, such as discriminatorily refusing to hire an applicant. Id. at 468-69.
The Court is not persuaded that the discussion or holding of Chiles is relevant to the present matter. This is not a case in which an employer disavows responsibility because it is not technically plaintiff's employer. Nor is this a case in which any of the parties claim that the PWDCRA is or should be limited to an actual employer only. Here, plaintiff does not provide evidence that an employee of defendant Great Lakes had the authority or the right to hire plaintiff on behalf of defendant NPower and used such authority to discriminate or retaliate based on plaintiff's alleged disability.
Even when viewing the evidence in a light most favorable to plaintiff, this Court in not persuaded that the PWDCRA implicitly allows or requires an applicant's current or former employer, called as a reference by a potential employer, to be held liable for a negative recommendation, when there is no evidence that the current or former employer conveyed any discriminatory reasons for its recommendation. Plaintiff utterly fails to refute defendant NPower's assertion that no one from Great Lakes had any decisionmaking authority. Plaintiff simply alleges that the Court should hold liable a former or current employer that made a negative job recommendation, even though the employer never stated or implied any illicit motives for making the recommendation. More importantly, plaintiff does not address the fact that NPower's Leadership Management Team, ultimately responsible for extending employment offers, undertook additional independent research about the potential employees after the February meeting in which the recommendation was made.
The Court need not decide whether the PWDCRA contemplates liability for a current or former employer who limits an applicant's job opportunities with a potential employer by conveying to the potential employer a discriminatory reason for its recommendation. The Court also need not address the case of a former or current employer who creates, either through discriminatory motives or statements, such a discriminatory environment that any recommendation to a potential employer is presumptively based on illegal motives. There is simply no evidence that plaintiff faced either of these situations. Finally, there is no evidence that the Great Lakes' employee making the recommendation had either implied or explicit authority to act on behalf of defendant NPower.
III. CONCLUSION
Accordingly, the Court finds that a negative job recommendation made by a current or former employer to a potential employer does not create liability under the PWDCRA when no discriminatory reasons were communicated to the potential employer. Subsequently, the lack of a viable legal claim against the predecessor corporation, defendant Great Lakes, negates any liability for the successor corporation, defendant NPower. Thus, defendants' motions for summary judgment will be granted in their entirety and all remaining claims against defendants will be dismissed. An order consistent with this opinion will issue forthwith.