STACEY WEBB V SWARTZ CREEK COMM SCHLS
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STATE OF MICHIGAN
COURT OF APPEALS
STACEY WEBB,
UNPUBLISHED
January 16, 2001
Plaintiff-Appellant,
v
SWARTZ CREEK COMMUNITY SCHOOLS and
JEAN BOWMAN,
No. 214038
Genesee Circuit Court
LC No. 97-054578-CL
Defendants-Appellees.
Before: Collins, P.J., and Jansen and Whitbeck, JJ.
PER CURIAM.
Plaintiff Stacey Webb appeals as of right the trial court’s order granting defendants
summary disposition pursuant to MCR 2.116(C)(10). At issue in this case is whether defendant
Swartz Creek Community Schools’ decision not to hire Webb as a school bus driver violated the
Civil Rights Act (CRA)1 and the Handicappers’ Civil Rights Act (HCRA).2 We affirm.
I. Basic Facts And Procedural History
Swartz Creek Community Schools (the District) maintains a list of bus drivers it uses as
substitutes when its regular drivers are absent. To be placed on the substitute bus drivers list, an
individual must have a commercial driver’s license (CDL) issued by the state. As the supervisor
of transportation and food services for the District, it was defendant Jean Bowman’s
responsibility to schedule interviews for individuals interested in being substitute bus drivers.
According to Bowman, staff would then screen the interested individual before the District
decided whether “to invest in their training.”
In August 1996, Webb learned that the District was looking for additional substitute
school bus drivers. At that time, Webb was five feet, eight inches tall and weighed between 320
and 330 pounds. Because Webb did not have a CDL, she obtained a CDL manual and an
1
MCL 37.2101 et seq.; MSA 3.548(101) et seq.
2
MCL 37.1101 et seq.; MSA 3.550(101) et seq. Effective March 12, 1998, this became known
as the Persons with Disabilities Civil Rights Act.
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information sheet explaining how to obtain a CDL from the District. After studying the manual,
Webb took and passed the written part of the CDL examination. When Webb informed the
District that she had passed the written portion of the CDL examination, Bowman offered her
“the opportunity to receive hands on training to become familiar with the proper operation of a
school bus.” This, evidently, was training the District routinely provided for unlicensed
individuals who were interested in working as bus drivers.
The District assigned one of its bus drivers to familiarize Webb with a school bus as well
as job procedures. On the first day of training, when Webb sat in the driver’s seat in a bus, the
steering wheel pressed against her abdomen. The next day, Bowman informed Webb that she
could not continue training because she could not fit into the driver’s seat.
Webb filed suit against defendants under two separate legal theories. First, she claimed
that she was handicapped because her physicians had diagnosed her as morbidly obese, a
condition that prevented her from standing for long periods of time, causing back pain and leg
numbness. According to Webb, defendants violated the HCRA by failing to accommodate her
handicap by adjusting the driver’s seat in a school bus so that she could sit without the steering
wheel touching her abdomen. Webb alleged that it would take a maintenance worker only
minutes to make this adjustment because the driver’s seat in the school buses the District used
were attached to a pole that allowed it to be adjusted vertically. Second, Webb claimed that the
District discriminated against her because of her weight when they failed to hire her, in violation
of the CRA. Defendants moved for summary disposition, arguing that Webb was not entitled to
protection under the HCRA or the CRA because she was not an employee or applicant for
employment, nor was she qualified to be a bus driver because she lacked a CDL. The trial court
granted defendants’ motion after concluding that Webb was not qualified to be a school bus
driver because she lacked a CDL, which was essential to the job. The trial court also concluded
that defendants had no duty to train her because she did not have a CDL, making the question of
discrimination based on her weight irrelevant.
On appeal, Webb challenges the trial court’s order granting summary disposition by
arguing that she was a qualified applicant for the bus driver position with the District, satisfying
that element of the prima facie case under the HCRA and the CRA. Specifically, she contends
that she did not need a CDL to be a job applicant protected under these two acts.
II. Standard of Review
This Court applies a de novo review to a trial court’s order granting summary
disposition.3 De novo review is also appropriate in this case because the issues on appeal
concern statutory interpretation and application.4
3
Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
4
Oakland Co Bd. of Co Rd Comm'rs v Michigan Property & Casualty Guaranty Ass'n, 456 Mich
590, 610; 575 NW2d 751 (1998).
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III. Legal Standard For Summary Disposition
Under MCR 2.116(C)(10), the trial court could summarily dispose of this case if
“[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and
[defendants, as the moving parties, were] entitled to judgment or partial judgment as a matter of
law.” The trial court had to consider the pleadings as well as affidavits, depositions, admissions
and other documentary evidence that appears in the record in the light most favorable to Webb,
the nonmoving party.5 However, Webb was obligated to produce evidence that demonstrated
that there was a material dispute of fact left to be resolved at trial in order to survive this motion.6
IV. The HCRA Claim
A. Prohibited Conduct
The HCRA “was designed to prohibit discriminatory practices, policies and customs with
respect to employment, public accommodations, services, educational institutions and housing.”7
With that goal in mind, the Legislature crafted MCL 37.1202(1); MSA 3.550(202)(1), which
provides that an employer shall not:
(a) Fail or refuse to hire, recruit, or promote an individual because of a
handicap 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 handicap 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
handicap that is unrelated to the individual's ability to perform the duties of a
particular job or position.[8]
As is apparent from the language in MCL 37.1202(1); MSA 3.550(202)(1), the meaning of the
word handicap is critical to determining whether discrimination occurred and whether a
5
MCR 2.116(G)(5); Ritchie-Gamester v City of Berkley, 461 Mich 73, 76; 597 NW2d 517
(1999).
6
MCR 2.116(G)(4); Etter v Michigan Bell Telephone Co, 179 Mich App 551, 555; 446 NW2d
500 (1989).
7
Milnikel v Mercy-Memorial Medical Center, 183 Mich App 221, 223; 454 NW2d 132 (1989).
8
The more recent amendments to this statute are not relevant in this case and we refer to the
statutory subsections as they appeared before 1998 PA 20.
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particular plaintiff is a member of a class that the HCRA protects.9 In the employment context,
the HCRA defines the word “handicap” as:
(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) . . . 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.[10]
A characteristic is “unrelated to the individual’s ability” when “with or without accommodation,
an individual's disability does not prevent the individual from . . . performing the duties of a
particular job or position.”11
B. The Prima Facie Case
In order for Webb to survive a motion for summary disposition on her claim that the
District’s failure or refusal to hire violated the HCRA, she had to establish that there was a
remaining question of fact concerning each of the three separate elements of a prima facie case12
of this sort of discrimination.13 First, she had to prove that there was a question of fact
concerning whether she is “handicapped” as defined above.14 Second, she had to demonstrate
that there was a factual dispute concerning whether her handicap is unrelated to her ability to
perform the duties of a school bus driver, as defined in the HCRA.15 Third, she had to establish
that the facts had not been settled regarding the District’s failure or refusal to hire her because
she had this handicap.16 We agree that there were unresolved questions of fact regarding the
relationship between her alleged handicap and her ability to perform the duties of a school bus
driver as well the District’s motivation in not hiring her. However, as we explain below, she
failed to raise a question of fact concerning whether her condition, obesity, was a handicap
within the meaning of the statute.
9
See MCL 37.1103(g); MSA 3.550(103)(g).
10
MCL 37.1103(e)(i); MSA 3.550(103)(e)(i).
11
MCL 37.1103(l)(i); MSA 3.550(102)(l)(i).
12
See Richardson v Michigan Humane Society, 221 Mich App 526, 527-528; 561 NW2d 873
(1997).
13
Of course, if she could prove the elements of her case, she would be entitled to summary
disposition in her favor. See MCR 2.116(I)(2).
14
Rollert v Dep’t of Civil Service, 228 Mich App 534, 538; 579 NW2d 118 (1998).
15
Id.
16
Id.
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Webb would be handicapped under the HCRA if her obesity substantially limits one or
more of her “major life activities.”17 “Major life activities” are those “functions such as caring
for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and
working.”18 To determine whether an alleged impairment of a major life activity is substantial,
we must examine the nature and severity of the impairment, its expected duration, and its
expected permanence.19
According to Webb’s affidavit, she could not stand for long periods because of her
obesity. After standing for approximately one hour, she suffered lower back pain and her legs
became numb. Webb also claimed difficulty climbing stairs and walking for more than ten
minutes without becoming breathless. Although walking is considered a major life activity,20
Webb did not claim that she was unable to walk. She merely stated that she became breathless
after walking for ten minutes without providing any factual basis to suggest that this is equivalent
to an impairment because, for example, ten minutes an unusually short period of time in which to
become winded. Further, Webb offered no evidence regarding the duration or permanence of
this alleged impairment. Whether this was an intermittent condition or a permanent condition is
not clear from the record. Thus, it is impossible to determine from the record that this
impairment was so severe it limited a major life activity for her.21
Under the HCRA, having a “handicap” also includes being perceived as having a
condition that falls within the definition of a “handicap” provided in MCL 37.1103(e)(1)(A);
MSA 3.550(103(e)(i)(A), whether or not a person actually is handicapped.22 To qualify under
this alternative definition of a handicap, others must perceive an individual as having a condition
that substantially limits one or more of that individual’s major life activities.23 It is insufficient
for others merely to view that individual as impaired.24 In this case, there is no evidence in the
record that the defendants believed Webb was unable to walk, work, or perform any other major
life activity. They were concerned only that she was unable to fit behind the wheel of a school
bus, which is not a major life activity. Therefore, Webb failed to establish that there was a
question of fact regarding whether she was handicapped under the HCRA, making summary
disposition on this claim appropriate.
17
MCL 37.1103(e)(i); MSA 3.550(103)(e)(i).
18
Stevens v Inland Waters, Inc, 220 Mich App 212, 218-219; 559 NW2d 61 (1996).
19
Chiles v Machine Shop, Inc, 238 Mich App 462, 474; 606 NW2d 398 (1999).
20
Stevens, supra at 218-219.
21
Chiles, supra at 474.
22
MCL 37.1103(e)(iii); MSA 3.550(103)(iii).
23
Sanchez v Lagoudakis, 440 Mich 496, 502; 486 NW2d 657 (1992).
24
Chiles, supra at 475.
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V. Discrimination Under The CRA
A. Overview
In her CRA claim, Webb alleges that, when defendants discontinued her training, they
violated MCL 37.2202(1)(a); MSA 3.548(202)(1)(a), which provides that an employer shall not
“[f]ail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with
respect to employment, compensation, or a term, condition, or privilege of employment, because
of . . . weight . . . .25 Accordingly, she contends, the trial court erred when it summarily disposed
of this claim.
B. Evidence Of Weight Discrimination
A plaintiff may establish a claim of weight discrimination by presenting direct evidence
that she was subjected to an adverse employment action due mainly to her weight.26 The adverse
employment action in this case was the District’s decision to discontinue Webb’s bus driving
training and to make it clear that she could not then be hired as a substitute bus driver. As
evidence of discriminatory animus, Webb alleges that Bowman told her that her weight was
“the” problem and that this statement was made in connection with Bowman’s decision not to
train her further or to hire her as a substitute driver. However, Bowman only found Webb’s
weight to be a problem because it prevented Webb from driving the school bus safely. There is
no evidence that Bowman, or any other District employee, made derogatory remarks about
Webb’s weight. In fact, Bowman suggested other employment for Webb within the school
district, implying that Webb’s weight was only a barrier to driving school buses.
Further, though Webb claims that the District simply had to lower her seat slightly to
allow her to drive, she does not claim that defendants believed this would require only a minor
accommodation. The evidence indicates that, at least at the time Bowman spoke to Webb,
defendants believed that they would need to modify the structure of the buses, possibly in
violation of safety standards, if they hired Webb. For instance, in his deposition, the employee
supervising the mechanics said Bowman instructed him to make sure the seat could not be move
further back. Webb presented no evidence that defendants have trained or hired other individuals
requiring structural modifications to the buses for some reason other than weight. Thus, Webb’s
evidence demonstrates that the defendants ended her training because she could not safely drive
the school buses, not because they did not want an overweight employee. She failed to establish
a question of fact concerning defendants’ discriminatory animus, making summary disposition on
this claim proper.
25
Plaintiff does not specifically brief this issue, except to say that the arguments made with
respect to her HCRA claim apply equally to her CRA claim and to put forth the specific CRA
provision she believes applies to this case.
26
Lamoria v Health Care & Retirement Corp, 230 Mich App 801, 808-809; 584 NW2d 589
(1998).
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Because summary disposition was proper for both claims, we need not reach Webb’s
other arguments.
Affirmed.
/s/ Jeffrey G. Collins
/s/ Kathleen Jansen
/s/ William C. Whitbeck
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