Opinion
363901
01-11-2024
CARLOS REYNOLDS, Plaintiff-Appellant, v. DEPARTMENT OF CORRECTIONS, Defendant-Appellee.
UNPUBLISHED
Ingham Circuit Court LC No. 20-000400-CD
Before: BOONSTRA, P.J., and O'BRIEN and SWARTZLE, JJ.
PER CURIAM.
Plaintiff appeals by right the trial court's order granting summary disposition under MCR 2.116(C)(10) in favor of defendant. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Plaintiff, an African-American, began working for defendant in 1989. He was promoted to captain and transferred to work at the Women's Huron Valley Correctional Facility in 2009, where he worked until his retirement in 2018. The events that led to the filing of this action occurred in 2017, before plaintiff's retirement. As a condition of employment, defendant's employees were subject to random drug tests that required the employees to provide urine samples. In April 2017, plaintiff failed a random drug test because he was unable to provide an adequate urine sample; under defendant's policies, this constituted a refusal to submit to a required drug test. Plaintiff was investigated, disciplined, and eventually terminated.
In May 2017, plaintiff filed a grievance with defendant, claiming that his high blood pressure and medication had interfered with his ability to provide the required urine sample. The grievance was denied. Plaintiff sought a review of that decision, and the reviewing hearing officer determined that the denial of the grievance should be overturned because defendant had failed to show just cause for the termination. More specifically, the hearing officer determined that the evidence plaintiff had provided, which included testimony from his personal physician about plaintiff's high blood pressure and the medication's side effects on urine output, outweighed defendant's evidence regarding just cause for termination. The Employment Relations Board upheld the reviewing officer's determination and, in April 2018, the Civil Service Commission issued a final decision approving the Board's decision.
Plaintiff was reinstated with back pay. However, plaintiff disputed his back-pay calculation and filed another grievance, which was denied. The reviewing hearing officer determined that the denial of this grievance should be upheld because defendant was required by federal law to withhold taxes from the back pay. Moreover, the hearing officer determined that plaintiff had been slightly overpaid, not underpaid. The Employment Relations Board upheld the reviewing officer's determination and, in January 2020, the Civil Service Commission issued a final decision approving the Board's decision. Neither of plaintiff's administrative grievances was based on any claim of discrimination or retaliation.
In August 2022, plaintiff filed suit against defendant, alleging two violations of the Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq., and one violation of the Persons with Disabilities Civil Rights Act (PWDCRA), MCL 37.1101 et seq. These claims were based on plaintiff's termination, grievance, eventual reinstatement, and back-pay award. Plaintiff alleged that defendant had treated him differently because of his race by terminating him for failing to complete a drug test, as opposed to how it had treated other similarly situated employees of a different race. Plaintiff also alleged that, by miscalculating his back-pay award, defendant had retaliated against him for complaining about his wrongful termination and racial discrimination. These allegations involved violations of the ELCRA. Regarding the PWDCRA, plaintiff alleged that his high blood pressure and medication side effects constituted a disability and that this disability had led to his inability to produce an adequate urine sample for the drug test. Plaintiff further alleged that, because defendant had terminated him due to his inability to produce the urine sample, defendant had necessarily discriminated against him based on his disability.
Defendant moved for summary disposition under MCR 2.116(C)(10), arguing that plaintiff had failed to establish a prima facie claim of race discrimination or retaliation under ELCRA. Defendant contended that plaintiff had failed to provide evidence of other similarly situated employees or that defendant had retaliated against him through a materially adverse action. Additionally, defendant argued that plaintiff had failed to establish a prima facie claim of disability discrimination under PWDCRA because plaintiff's high blood pressure and medication side effects did not rise to the level of a disability. The trial court granted defendant's motion for summary disposition, reasoning that plaintiff had essentially failed to provide sufficient evidence to support his claims and to rebut defendant's evidence. This appeal followed.
II. STANDARD OF REVIEW
We review de novo "a trial court's decision on a motion for summary disposition, as well as questions of statutory interpretation and the construction and application of court rules." Dextrom v Wexford Co, 287 Mich.App. 406, 416; 789 N.W.2d 211 (2010). A motion is properly granted under MCR 2.116(C)(10) when there is no genuine issue with respect to any material fact and the moving party is entitled to judgment as a matter of law. Dextrom, 287 Mich.App. at 415. This Court "must examine the documentary evidence presented and, drawing all reasonable inferences in favor of the nonmoving party, determine whether a genuine issue of material fact exists. A question of fact exists when reasonable minds could differ as to the conclusions to be drawn from the evidence." Id. at 415-416.
III. PWDCRA CLAIM
Plaintiff argues that the trial court erred by granting defendant's motion for summary disposition with respect to his PWDCRA claim, because plaintiff had demonstrated a genuine issue of material fact regarding whether he suffered from a disability for purposes of the PWDCRA. We disagree.
A person is guaranteed the opportunity to obtain employment without discrimination due to a disability, MCL 37.1102(1), and an employer shall not terminate a person "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," MCL 37.1202(1)(b). In order to establish a prima facie case of disability discrimination under the PWDCRA, a plaintiff must prove three elements: "(1) that he is [disabled] as defined in the act, (2) that the [disability] is unrelated to his ability to perform his job duties, and (3) that he has been discriminated against in one of the ways delineated in the statute." Jewett v Mesick Consol Sch Dist, 332 Mich.App. 462, 471; 957 N.W.2d 377 (2020) (quotation marks and citations omitted; alterations in original). Although the PWDCRA analysis is similar to the analysis for the Americans with Disabilities Act (ADA), 42 USC 12101 et seq., "it should not simply be assumed that the PWDCRA will parallel the ADA." Jewett, 332 Mich.App. at 471.
The PWDCRA protects only those "physical or mental disabilities that substantially limit a major life activity of the disabled individual, but that, with or without accommodation, do not prevent the disabled individual from performing the duties of a particular job." Jewett, 332 Mich.App. at 471 (quotation marks and citations omitted; emphasis added). MCL 37.1103(d)(i)(A) defines "disability" to be:
(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 of the major life activities of that individual and is unrelated to the individual's qualifications for employment or promotion.
"[N]ot every impairment rises to the level of a disability under the PWDCRA." Chiles v Machine Shop, Inc, 238 Mich.App. 462, 474; 606 N.W.2d 398 (1999). A "major life activity" includes "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." Id. at 477 (quotation marks and citation omitted). "[A]ny 'substantial limitation' suffered by an allegedly disabled individual must relate to one of these activities," and, given the broad reach of a major life activity, we have observed that "the reach of the PWDCRA is limited principally by . . . requiring that the activity be 'substantially limited' and by the overall purposes of the act." Chiles, 238 Mich.App. at 477.
"[T]he plaintiff must proffer evidence from which a reasonable inference can be drawn that such activity is substantially limited." Id. at 479. When determining whether a person's activities are substantially limited, a trial court "considers (i) the nature and severity of the impairment, (ii) the duration or expected duration of the impairment, and (iii) the permanent or expected permanent or long-term effect." Id. "[A] disability normally does not include temporary medical conditions, even if those conditions require extended leaves from work." Id. (emphasis added). In other words, those temporary "maladies" that are more "commonplace" in society are excluded under the PWDCRA. Chiles, 238 Mich.App. at 480-481. "Therefore, where an impairment is temporary and relatively easily remedied, when considered in the greater scheme of potential impairments, such as with a temporary back injury, such an ailment is not a substantial limitation on any major life activity." Id. at 482.
When determining whether a person is disabled, a trial court must evaluate the person's alleged condition along with any mitigating medication for that condition. Chmielewski v Xermac, Inc, 457 Mich. 593, 603-608; 580 N.W.2d 817 (1998). Our Supreme Court has rejected the argument that a person's alleged condition should be evaluated without considering the effects of mitigating medication. Id. In other words, a person's disability must be evaluated as is, which includes any mitigating effects of medication taken for that condition, rather than considering the person's condition as it would hypothetically exist without medication.
Plaintiff has not established that his high blood pressure and any side effects of medication taken to treat that condition rose to the level of a disability for purposes of the PWDCRA. It is true that plaintiff presented medical evidence to show that his inability to produce an adequate urine sample during the 2017 drug test was caused by his high blood pressure and medication. However, plaintiff testified during his deposition that, prior to that drug test, he had never had any issues urinating or producing adequate samples for drug testing. In fact, he testified that the first instance of the high blood pressure or medication affecting his ability to urinate at any point in time was during the 2017 drug test. In other words, plaintiff provided evidence of only a single instance in which his high blood pressure and medication may have inhibited his ability to urinate. Moreover, during the drug test, plaintiff never mentioned any issue with urinating and the only accommodation plaintiff requested was to drink more water.
A single instance of dehydration and being unable to produce a sufficient urine sample for a drug test does not qualify as a disability that substantially limits a major life activity for purposes of the PWDCRA. The evidence submitted by plaintiff showed only that he suffered from a temporary medical condition on the day of the test. Accordingly, plaintiff failed to establish a prima facie case of disability discrimination. Jewett, 332 Mich.App. at 471.
IV. ELCRA CLAIMS
Plaintiff argues that the trial court erred by granting defendant's motion for summary disposition regarding his ELCRA claims, because he demonstrated genuine issue of material fact regarding his race discrimination and retaliation claims. We disagree with both arguments.
A. RACE DISCRIMINATION
Employers may not terminate or otherwise discriminate against a person because of race. MCL 37.2202(1)(a). There are two categories of ELCRA discrimination claims that Michigan courts have recognized: "disparate treatment and disparate impact claims." White v Dep't of Transp, 334 Mich.App. 98, 107; 964 N.W.2d 88 (2020) (quotation marks and citation omitted). Given that plaintiff alleged that defendant had discriminated against him because of his race, this case involved allegations of disparate treatment. White, 334 Mich.App. at 107. Moreover, given that plaintiff provided "no direct evidence of impermissible bias," his claim was subject to the "burden-shifting framework" set forth in McDonnell Douglas Corp v Green, 411 U.S. 792. White, 334 Mich.App. at 107 (quotation marks and citation omitted).
Under the McDonnell burden-shifting framework, a plaintiff must first establish a prima facie case of race discrimination. White, 334 Mich.App. at 107-108. In order to establish a prima facie case of race discrimination under the ELCRA, a plaintiff must prove four elements, and these elements "should be tailored to fit the factual situation at hand." Id. at 108 n 4 (quotation marks and citation omitted). In this case, plaintiff was required to show he was "(1) a member of a protected class, (2) subject to an adverse employment action [i.e., termination for refusing a drug test], (3) qualified for the position, and that (4) others, similarly situated and outside the protected class, were unaffected by the employer's adverse conduct [i.e., other employees were not terminated for refusing a drug test]." Town v Mich. Bell Tel Co, 455 Mich. 688, 695; 568 N.W.2d 64 (1997); see also McDonnell, 411 U.S. at 802.
"A plaintiff can attempt to prove discrimination by showing that the plaintiff was treated unequally to a similarly situated employee who did not have the protected characteristic." Hecht v Nat'l Heritage Academies, Inc, 499 Mich. 586, 608; 886 N.W.2d 135 (2016). "In order for this type of 'similarly situated' evidence alone to give rise to such an inference, however, our cases have held that the 'comparable' employees must be 'nearly identical' to the plaintiff in all relevant respects." Id. (citation omitted).
Plaintiff failed to present evidence of similarly situated employees who were treated unequally. Plaintiff noted one Caucasian corrections officer who had experienced issues with her drug test but was not terminated. However, this officer and plaintiff were not nearly identical in all relevant respects. The officer's disciplinary report shows that she provided an adequate urine sample for a drug test; however, she admitted that she had drank water before reaching the facility, which violated defendant's policy. This violation was investigated, and ultimately no discipline was imposed. The disciplinary report provides that this decision was based on the totality of the circumstances, which included video evidence. Therefore, the circumstances for the corrections officer were substantially dissimilar to plaintiff's circumstances. Unlike plaintiff, the officer was not accused of failing to provide an adequate urine sample and did not fail to complete a drug test. Moreover, there was no dispute over the sufficiency of the evidence in plaintiff's case.
It was not enough for plaintiff to show merely that he and the other corrections officer worked for the same employer, were subject to the same policies, and had issues with their respective drug tests. Instead, plaintiff was required to show that the corrections officer had failed to provide an adequate urine sample-or another, "nearly identical" situation-and that defendant had treated the other officer differently than it treated plaintiff. Hecht, 499 Mich. at 608. Plaintiff has failed to do so. In fact, when asked at the hearing what evidence supported plaintiff's claim that other similarly situated individuals were treated differently, plaintiff's counsel conceded that he did not have such evidence or specific examples. Therefore, plaintiff failed to demonstrate any genuine issue of material fact regarding a prima facie case of race discrimination. Town v Mich. Bell Tel Co, 455 Mich. at 695.
B. RETALIATION
"Under ELCRA, an employer is liable if it retaliates against an employee for having engaged in protected activity, e.g., opposing a violation of the act's antidiscrimination provision." White, 334 Mich.App. at 114. See also MCL 37.2701(a). In order to establish a prima facie case of retaliation under ELCRA, a plaintiff must prove four elements: "(1) that the plaintiff engaged in a protected activity, (2) that this was known by the defendant, (3) that the defendant took an employment action adverse to the plaintiff, and (4) that there was a causal connection between the protected activity and the adverse employment action." Meyer v City of Center Line, 242 Mich.App. 560, 568-569; 619 N.W.2d 182 (2000). In a recent decision, we "adopt[ed] the reasonable-employee standard for determining whether an employer has committed a retaliatory adverse employment action under ELCRA," which was set forth in Burlington Northern &Santa Fe R Co v White, 548 U.S. 53; 126 S.Ct. 2405; 165 L.Ed.2d 345 (2006). White, 334 Mich.App. at 120-121. This standard is objective, and we "must determine if the plaintiff has submitted sufficient proofs to establish a question of fact whether or not the action meets the Burlington standard." White, 334 Mich.App. at 118-119. "[A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington, 548 U.S. at 68 (quotation marks and citations omitted).
In this case, plaintiff alleged that defendant had retaliated against him by refusing to provide the proper award of back pay upon plaintiff's reinstatement. Plaintiff testified at his deposition that this was the sole basis for his retaliation claim, although plaintiff's counsel later stated that the disciplinary investigation, as well as plaintiff's termination, was itself a form of retaliation. On appeal, plaintiff also argues that defendant's decision to oppose plaintiff in the grievance process was a form of retaliation. However, the majority of these arguments are based on claims that were not made in plaintiff's complaint. Therefore, we will focus solely on the allegations as pled and supporting testimony. Despite this singular focus, we find plaintiff's position difficult to follow. He appears to argue that defendant's withholding of income taxes from his back-pay award constituted an adverse employment action. However, plaintiff has failed to present any evidence that the back-pay amount was incorrect. In fact, when explicitly asked what evidence there was to support plaintiff's position that he paid more than he should have in taxes, plaintiff's counsel conceded that he did not have such evidence. In contrast, defendant presented an affidavit from an employee who processed all back-pay awards for defendant, including plaintiff's award. This employee affirmed that the tax withholdings were automatically calculated by a computer program that was built into the payroll program, in order to make it as though the employee was never terminated. This calculation was not manually completed by any of defendant's employees, and there was no evidence presented that any employee of defendant even had the discretion to alter the amount.
Accordingly, plaintiff has failed to show "that a reasonable employee would have found the challenged action materially adverse ...." Burlington, 548 U.S. at 68 (quotation marks and citations omitted). We agree with the trial court that, rather than present evidence of retaliation, plaintiff had relied on his own "beliefs," "feelings," and "theories." See MCR 2.116(G)(4) (providing that, in the context of MCR 2.116(C)(10), a nonmoving party "may not rest upon the mere allegations or denials of his or her pleading" but must instead "set forth specific facts showing that there is a genuine issue for trial"). Plaintiff has failed to demonstrate any genuine issue of fact regarding a prima facie case of retaliation. Meyer, 242 Mich.App. at 568-569.
V. DUE PROCESS
For the first time on appeal, plaintiff alleges that the trial court violated his right to the due process of law when it rescheduled the hearing on defendant's motion for summary disposition from November 15, 2022 to November 1, 2022. We decline to address this unpreserved and forfeited issue.
"In civil cases, Michigan follows the raise or waive rule of appellate review." Tolas Oil &Gas Exploration Co v Bach Servs &Mfg, LLC, Mich. App,; N.W.2d (2023) (Docket No. 359090); slip op at 2. "If a litigant does not raise an issue in the trial court, this Court has no obligation to consider the issue." Id. at; slip op at 3. In this case, plaintiff failed to raise any issue with the change in hearing date before the trial court, which he was explicitly entitled to do under the court rules. See, e.g., MCR 2.401(B)(2)(b) and (d) (empowering a trial court to unilaterally schedule events but giving parties the opportunity to challenge such unilateral scheduling). Moreover, at the hearing itself, neither plaintiff nor his counsel raised an objection to the rescheduling or asked for additional time. We therefore decline to review this issue on appeal.
Affirmed.