Ashworth v. Jefferson Screw Products, Inc , 176 Mich. App. 737 ( 1989 )

Doctoroff, P.J.

Plaintiff appeals as of right from the circuit court order granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(8) and (10) and dismissing plaintiff’s employment discrimination case filed under the Michigan Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq. On appeal, plaintiff raises three issues which he states require reversal of the trial court. Finding no issue of merit, we affirm.

Plaintiff began working at defendant Jefferson Screw Products, Inc., on March 3, 1977. On March 23, 1983, plaintiff was laid off from employment. On November 17, 1984, plaintiff was involved in an automobile accident and sustained a severe head injury, a fractured leg and ligament damage to the right knee. Surgery to repair the damage to plaintiff’s leg was performed on August 12, 1985. His doctor estimated that plaintiff would be unable to work for three months from the date of surgery.

On September 3, 1985, defendant recalled plaintiff and other high seniority employees from layoff status. Plaintiff responded in person the day following his receipt of notification. Plaintiff arrived in defendant’s office with one leg in a cast. He stated that he was unable to return to work at that time because he had to undergo long-term therapy, but he estimated that he expected to return to work on November 1, 1985. Plaintiff’s job as a grinder operator cannot be performed while the operator is sitting down.

On September 17, 1985, plaintiff was terminated from employment pursuant to article 7, § 4(D), of the collective bargaining agreement applicable to his employment, which provides:

An employee shall lose his seniority for the following reasons only

Failing to report for work after a layoff within three working days when called by the company by registered mail or telegram unless an employee presents a reason acceptable to the management.

The termination report stated that plaintiff was terminated for failure to return to work from layoff due to injuries from an accident. Donald Pinkerton, president of defendant company, advised plaintiff that his injuries were not an acceptable reason to the management and that the company needed to fill the position immediately.

Plaintiff filed a grievance through his union. The union’s position was that plaintiff should be returned to layoff status until he was released to return to work by his physician. Defendants denied the grievance, stating that the employee’s reason was not acceptable to management "for obvious reason.” By its vote not to strike, the union membership declined to pursue plaintiffs grievance further.

On March 17, 1986, plaintiff initiated this employment discrimination suit alleging (1) that he was discharged in violation of the hcra, and that the discharge was a pretext for discrimination, (2) that defendants violated the hcra by failing to make "reasonable accommodation” to plaintiff by granting him a medical leave until he was able to return to work, (3) that defendants discharged plaintiff or discriminated against him for fear he would in the future file a workers’ compensation claim against defendant company, and (4) that defendants’ actions violate the public policy of the State of Michigan.

Defendants’ motion for summary disposition pursuant to MCR 2.116(C)(8) and (10) was granted and an order entered on May 5, 1987.

A motion for summary disposition pursuant to MCR 2.116(C)(8), failure to state a claim upon which relief can be granted, is tested by the pleadings alone. Only the legal basis of the complaint is examined. The factual allegations of the complaint are accepted as true, along with any inferences which may fairly be drawn therefrom. Unless the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify recovery, the motion should be denied. Mills v White Castle System, Inc, 167 Mich App 202, 205; 421 NW2d 631 (1988).

A motion for summary disposition brought under MCR 2.116(0(10), no genuine issue as to any material fact, tests whether there is factual support for the claim. In so ruling, the trial court must consider the affidavits, pleadings, depositions, admissions and other documentary evidence submitted by the parties. MCR 2.116(G)(5). The opposing party must show that a genuine issue of fact exists. Giving the benefit of all reasonable doubt to the opposing party, the trial court must determine whether the kind of record that might be developed would leave open an issue upon which reasonable minds could differ. Metropolitan Life Ins Co v Reist, 167 Mich App 112, 118; 421 NW2d 592 (1988). A reviewing court should be liberal in finding that a genuine issue of material fact exists. A court must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome. Rizzo v Kretschmer; 389 Mich 363, 371-372; 207 NW2d 316 (1973).

The party opposing an MCR 2.116(0(10) motion for summary disposition bears the burden of showing that a genuine issue of material fact exists. Fulton v Pontiac General Hospital, 160 Mich App 728, 735; 408 NW2d 536 (1987). The opposing party may not rest upon mere allegations or denials of the pleadings but must, by other affidavits or documentary evidence, set forth specific facts showing that there is a genuine issue for trial. MCR 2.116(G)(4). If the opposing party fails to make such a showing, summary disposition is appropriate. Rizzo, p 372.

i

Plaintiff claims that the trial court improperly granted defendants’ motion for summary disposition because defendants’ stated reason for the discharge, failure to return to work from layoff, was a pretext for discriminating against him because of a perceived handicap in violation of MCL 37.1202(l)(b); MSA 3.550(202)(l)(b), which provides:

An employer shall not:

Discharge or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment, because of a handicap that is unrelated to the individual’s ability to perform the duties of a particular job or position. [Emphasis added.]

The hcra covers only those whose disability is unrelated to the ability to perform the job. The handicapped person seeking employment must be capable of performing the duties of the position. Carr v General Motors Corp, 425 Mich 313, 321-322; 389 NW2d 686 (1986), reh den 426 Mich 1231 (1986). A disability that is related to one’s ability to perform the duties of a particular position is not a "handicap” within the meaning of the hcra. Id., pp 315-316.

By his own admissions, plaintiff was unable to perform the duties of his position as a grinder operator. He documented this with a doctor’s note which stated that he could not return to work until November 1, 1985, two months after the recall. Plaintiff’s disability prevented him from fulfilling the requirements of the job at the time of discharge. Plaintiff’s handicap was directly related to his ability to perform the job. Thus, plaintiff was not "handicapped” within the meaning of the HCRA.

To recover under the hcra, a plaintiff must allege and prove that (1) he or she is "handicapped” as defined in the hcra, (2) the handicap is unrelated to his or her ability to perform the duties of a particular job, and (3) he or she has been discriminated against in one of the ways set forth in the statute. Doman v Grosse Pointe Farms, 170 Mich App 536, 541; 428 NW2d 708 (1988).

We hold that the trial court’s grant of summary disposition for defendants on the ground that plaintiff failed to state a cause of action under the hcra was correct. Therefore, we need not address the question of defendants’ pretext or motivation.

II

Plaintiff claims that he would have been able to perform the requirements of his job within two months after the recall and that defendants had a statutory duty to make a reasonable accommodation to his handicap by granting him a medical leave. We disagree.

MCL 37.1202(l)(g); MSA 3.550(2Q2)(l)(g) provides:

An employer shall not:

Discharge or take other discriminatory action against an individual when adaptive devices or aids may be utilized thereby enabling that individual to perform the specific requirements of the job.

The duty of an employer to accommodate handicapped employees under the handicappers’ act is limited to (1) the alteration of physical structures to allow access to the place of employment and (2) the modification of peripheral duties to allow job performance. The duty to accommodate imposed under the handicappers’ act does not extend to new job placement or vocational rehabilitation efforts. Rancour v The Detroit Edison Co, 150 Mich App 276, 279; 388 NW2d 336 (1986), lv den 428 Mich 860 (1987).

In Wilson v Acacia Park Cemetery Ass’n, 162 Mich App 638, 643-644; 413 NW2d 79 (1987), this Court held:

[PjlaintifFs disability prevented him from fulfilling the requirements of his job at the time of his discharge. Hence, it cannot be said that the handicap was unrelated to employment. Plaintiff’s alleged subsequent recovery from his medical disability and regained ability to perform the job does not alter this conclusion. Even if this allegation is true, defendant’s reliance on plaintiff’s medical condition to justify the discharge shows a sufficient relationship to employment. Whether a particular medical condition is related to employment should not depend on the correctness of the employer’s evaluation of the prospects of the employee’s eventual recovery.

Nowhere in the handicappers’ act do we find a requirement that an employer leave a job open until a plaintiff’s handicap is removed. In accordance with Carr and Wilson, we hold that defendants’ duty to make a "reasonable accommodation” did not extend to granting plaintiff a medical leave until such time as he would be able to perform the requirements of his job.

hi

Plaintiff contends that he was discharged because defendants anticipated that he would file a workers’ compensation claim against them. Attached to plaintiff’s brief in response to defendants’ motion for summary disposition was the affidavit of Robert Reidt, president of the UAW Local 189. Reidt stated that the only reason Pinkerton gave as to why he would not grant plaintiff a medical leave was "he was too great of a workmens [sic] comp risk and my rates are high enough now.”

In Sventko v The Kroger Co, 69 Mich App 644; 245 NW2d 151 (1976), it was held that a discharge of an employee in retaliation for the employee’s filing of a lawful workers’ compensation claim against an employer is not consistent with the public policy of this state. Plaintiff argues that this Court should extend the holding in Sventko and hold that it is also contrary to public policy to discharge an employee in anticipation that the employee will file a claim in the future.

This argument was specifically rejected in Wilson, supra, pp 645-646, where this Court held:

The statutory provision prohibiting retaliatory discharge in MCL 418.301(11); MSA 17.237(301X11) does not help plaintiff because it prohibits discharge or discrimination only in retaliation for prior claims for workers’ compensation benefits. Here plaintiff premises his right of recovery on defendant’s anticipation of future claims. Prior to the enactment of 1981 PA 200, MCL 418.301; MSA 17.237(301) did not explicitly prohibit retaliatory discharge of a workers’ compensation claimant. However, this Court in cases arising prior to that time applied the public policy exception noted above to hold that retaliatory discharge was actionable for claims filed prior to discharge. Sventko v The Kroger Co, 69 Mich App 644; 245 NW2d 151 (1976); Hrab v Hayes-Albion Corp, 103 Mich App 90; 302 NW2d 606 (1981); Goins v Ford Motor Co, 131 Mich App 185, 192-194; 347 NW2d 184 (1983), lv den 424 Mich 879 (1986).

We hold that retaliatory discharge premised upon the employer’s anticipation of a future claim does not state a legally cognizable cause of action. [Emphasis in original.]

Affirmed.

R. R. Lamb, J., concurred.