LORRAINE JACKSON V MARILYN LORENCE
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STATE OF MICHIGAN
COURT OF APPEALS
LORRAINE JACKSON,
UNPUBLISHED
October 9, 2001
Plaintiff-Appellant,
v
No. 222798
Oakland Circuit Court
LC No. 98-007394-CL
MARILYN LORENCE and TAUBMAN
COMPANY LIMITED PARTNERSHIP, d/b/a
TAUBMAN COMPANY,
Defendants-Appellees.
Before: K.F. Kelly, P.J., and Hood and Zahra, JJ.
PER CURIAM.
Plaintiff appeals as of right, challenging the trial court’s orders granting defendants’
motions for summary disposition of her claims under the Civil Rights Act, MCL 37.2101 et seq.,
the Handicapper’s Civil Rights Act (HCRA), MCL 37.1101 et seq.,1 and the Americans with
Disabilities Act (ADA), 42 USC 12101 et seq., as well as plaintiff’s claim for intentional
infliction of emotional distress. We affirm.
Plaintiff is an African-American female who was employed by defendant Taubman
Company beginning in 1987. Defendant Lorence was plaintiff’s supervisor. In August 1995,
plaintiff went on a medical leave of absence because of depression and anxiety. Plaintiff
submitted several notes from two different psychiatrists extending her disability. When she did
not return to work after 180 days, her employment was terminated pursuant to a company policy
that required termination after 180 days of non-job-related disability leave if the employee was
unable to return to work.
I. HCRA and ADA claims
Plaintiff now argues that the trial court erred in finding that she was not a “handicapper”
within the meaning of the HCRA, or a “qualified person with a disability” within the meaning of
the ADA. We disagree. The HCRA prohibits forms of employment discrimination and requires
1
The HCRA is now known as the Persons with Disabilities Civil Rights Act.
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that reasonable accommodations be made to assist handicapped individuals in performing the
duties of their employment. Tranker v Figgie Int’l, Inc (On Remand), 231 Mich App 115, 122;
585 NW2d 337 (1998). To establish a prima facie case of discrimination under the HCRA, the
plaintiff must establish (1) she has a “handicap” as defined by the HCRA, (2) the handicap is
unrelated to her ability to perform the duties of a particular job, and (3) she was discriminated
against in one of the ways described in the statute. Kerns v Dura Mechanical Components, Inc
(On Remand), 242 Mich App 1, 12; 618 NW2d 56 (2000).
Similarly, the ADA “was enacted to protect against discrimination in employment,
including hiring, firing, and advancement.” Tranker, supra at 118, citing Swanks v Washington
Metropolitan Area Transit Authority, 325 US App DC 238; 116 F3d 582 (1997). “The
protection afforded by the ADA extends to disabled individuals who can perform the essential
functions of the employment position that they hold or desire with or without reasonable
accommodation.” Id. A “qualified individual with a disability” under the ADA is
one who satisfies the requisite skill, experience, education, or other work-related
requirements of the job and who can perform its essential functions with or
without reasonable accommodation. 42 USC 12111(8). Simply put, the ADA
does not cover all disabled persons, but only those who can perform their jobs'
essential functions with the aid of reasonable accommodation. [Collins v Blue
Cross Blue Shield of Mich, 228 Mich App 560, 570; 579 NW2d 435 (1998).]
In the present case, the trial court correctly determined that plaintiff did not qualify for
protection under either of these statutes. According to plaintiff’s deposition testimony, the two
psychiatrists who treated her wanted her to remain away from work, and neither released her to
return to work or indicated that any accommodations would allow her to return. Further, plaintiff
made representations to the Social Security Administration and the Bureau of Workers’
Compensation that she had been unable to work since August 3, 1995, and could not perform the
functions of her job with defendant or of any job. Therefore, her condition was directly related to
her ability to perform her job.2 Although plaintiff submitted an affidavit indicating that she was
willing to attempt to return to work, she could not create a question of fact by making statements
in a later affidavit that contradicted her earlier deposition testimony. Downer v Detroit Receiving
Hospital, 191 Mich App 232, 234; 477 NW2d 146 (1991). Because plaintiff was not a
handicapped person or a qualified person with a disability, defendant Taubman had no duty to
accommodate plaintiff. Accordingly, the trial court properly granted defendant summary
disposition of plaintiff’s claims under the HCRA and the ADA.
Plaintiff argues that her depression and anxiety are unrelated to her ability to perform the
duties of her job with Taubman and contends that her second psychiatrist, Dr. Kafi, documented
that she could return to work on February 16, 1996. However, the note from Dr. Kafi does not
2
Plaintiff correctly argues that the receipt of social security benefits does not automatically bar a
subsequent claim under either the HCRA or the ADA. However, statements made in application
for disability benefits may be weighed against a plaintiff in a subsequent handicap discrimination
claim. Tranker, supra at 122-123.
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specify that plaintiff could return to work and is in the same format as previous notes extending
her disability. Given that defendant did not have a duty to accommodate plaintiff, because she
was not able to return to work during the 180-day period, this note alone did not trigger any
further duty on defendant’s part.
Plaintiff also contends that defendant Taubman should have considered her leave of
absence to be “job-related.” Under the January 1995 Illness and Disability Policy that was in
effect when plaintiff first began her leave of absence in August 1995, the employer paid for a
maximum of 180 disability days for a non-job-related injury in a twelve-month period. The
policy provided that if an employee was unable to work after that time, “your employment will
be terminated and you may become eligible for coverage under the Long-Term Disability (LTD)
insurance policy.” The policy defined a “job-related injury” as one for which an employee was
receiving workers’ compensation insurance benefits. We agree with the trial court that, under the
plain language of Taubman’s policy, plaintiff’s condition was not job-related because she did not
receive workers’ compensation benefits during her absence and did not even file a workers’
compensation claim until April 1996, more than two months after her employment was
terminated. Plaintiff’s argument that a diagnosis indicating that her anxiety was induced by
stress on the job transformed her disability into one that was job-related under defendant’s policy
has no merit.
Plaintiff next argues that the trial court erred when it concluded that she did not request
accommodation and that defendant Taubman had no duty to accommodate her. However,
because plaintiff was not handicapped within the meaning of the HCRA, Taubman had no duty
to accommodate her. Further, the trial court correctly found that plaintiff never requested
accommodation, instead insisting throughout her leave of absence that she was unable to perform
the functions of her job. Although plaintiff now contends that she produced a “vast amount of
evidence” that she requested accommodation directly, she has not identified a specific document
in which she makes this request. The statements from her physicians each seek to extend her
leave of absence because plaintiff was unable to work. The duty to make "reasonable
accommodation" under the HCRA does not extend to granting the plaintiff a medical leave until
such time as she would be able to perform the requirements of his job. Kerns, supra at 16.3
The trial court also correctly determined that defendant’s Illness and Disability Policy was
not discriminatory. A written policy of an employer purporting to require discharge in a certain
circumstance that is facially neutral can stand as a shield against claims of discriminatory
discharge so long as the employer establishes that the policy is applied uniformly without
exceptions. Lamoria v Health Care & Retirement Corp, 233 Mich App 560, 562; 593 NW2d
699 (1999), adopting the reasoning of the previously vacated decision in 230 Mich App 801,
811-812; 584 NW2d 589 (1998). Here, the testimony of Taubman’s Employee Relations Vice
3
Similarly, plaintiff’s argument that the trial court erred in granting summary disposition to
defendant Lorence on plaintiff’s HCRA claim, because individual managers can be held liable
under the act, is without merit. Plaintiff is not a handicapper within the meaning of the act, and
the trial court properly found that she is not eligible for protection under the act. Furthermore,
the undisputed evidence established that Taubman’s human resources personnel, not Lorence,
performed the ministerial duties associated with plaintiff’s leave of absence.
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President Robert Cleary was that plaintiff’s employment was terminated automatically by
application of the Illness and Disability Policy when she did not return to work after 180 days of
her medical leave of absence, and that Taubman strictly adhered to this rule. Therefore, the
policy was not discriminatory, and the trial court did not err in concluding that plaintiff’s
employment was lawfully terminated.
II. CRA claim
Next, plaintiff argues that the trial court erred in granting summary disposition to
defendants on plaintiff’s claim under the Civil Rights Act. The CRA prohibits race
discrimination in employment decisions, providing:
(1) An employer shall not do any of the following:
(a) Fail 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 religion, race, color, national origin, age, sex,
height, weight, or marital status. [MCL 37.2202(1)(a).]
A plaintiff may establish a prima facie case of discrimination under the CRA by showing that she
was:
(1) a member of a protected class, (2) subject to an adverse employment action,
(3) qualified for the position, and that (4) others, similarly situated and outside the
protected class, were unaffected by the employer’s adverse conduct. [Town v
Michigan Bell Telephone Co, 455 Mich 688, 695; 568 NW2d 64 (1997), citing
McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668
(1973).]
If the plaintiff establishes a prima facie case, a presumption of discrimination arises that the
defendant may rebut by articulating a legitimate, nondiscriminatory reason for the employment
decision. Town, supra at 695-696. If the employer rebuts the presumption of discrimination, the
plaintiff must then raise a triable issue that the stated reason for the adverse employment decision
was merely pretext for discriminatory animus. Id. at 696-697.
Plaintiff claimed that she was not placed in job positions for which she was qualified
while less qualified Caucasian employees obtained these positions, that she was not promoted
while less qualified coworkers with less seniority were promoted, that she was given adverse
work assignments, that her attendance and job performance was scrutinized in an unusual and
unreasonable manner, and that she was harassed because of her race. She also claimed that race
played a role in her eventual termination from employment and noted that she was replaced by a
Caucasian male. Plaintiff maintained that she sought placement in the positions of Senior
Assistant Lease Administrator, Benefits Clerk, Benefits Specialist, and Insurance Coordinator,
and that she had the required education and skills for these positions, which went to Caucasian
employees. The trial court determined that plaintiff presented a prima facie case of
discrimination, because she showed that she did not receive promotions that went to Caucasian
employees. However, the court also determined that defendants met their burden of providing a
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nondiscriminatory reason for not giving these positions to plaintiff because she did not meet the
criteria of prior pertinent experience and good job performance.
We agree that that plaintiff did not meet the burden of proving that the legitimate
nondiscriminatory reasons offered by Taubman were merely pretexts for discrimination.
Regarding the Senior Assistant Lease Administrator position, plaintiff contended that she had the
posted qualifications, including a four-year college degree, and asserted that she had good job
performance and expected to be promoted. She was the only African-American employee in the
Lease Administration Department. Plaintiff maintained that almost all of the Caucasian
employees in her department were promoted during the department’s 1989 reorganization, while
she was not. However, according to defendant’s uncontroverted evidence, only six of the twenty
employees in the department received promotions, while plaintiff and the thirteen remaining
Caucasian employees did not. Plaintiff also challenged defendant’s hiring of an allegedly less
qualified Caucasian applicant for the position of Benefits Clerk, and the transfer of Caucasian
employees to the positions of Benefits Specialist and Legal Services Coordinator. However,
defendant explained that plaintiff had minimal benefits experience while the successful applicant
for the Benefits Clerk position had previously worked as a human resources assistant,
specializing in benefits administration and human resource information systems, and the
employee transferred to the Benefits Specialist position had held various positions within the
Human Resources Department over a period of six years. The employee transferred to the
position within the Legal Services department had received “admirable” performance evaluations
for the preceding three years, which made her more qualified for the position than plaintiff.
Plaintiff presented no evidence to show that defendant’s explanation of its nondiscriminatory
motives was merely pretext for discrimination, and the trial court did not err in granting summary
disposition on these claims.
Plaintiff also alleged that she was subjected to disparate treatment based upon her race
with respect to adverse work assignments and closer scrutiny of her work than Caucasian
employees. In opposing defendants’ motion for summary disposition, plaintiff argued that,
during the six months before her disability leave, she was “bombarded” with additional work,
required to inform her supervisor by e-mail of her arrival and departure times, and had false
memos regarding her work performance and conduct placed in her personnel file. Although
plaintiff maintained that defendants’ conduct was done to discriminate against her and harass her,
plaintiff presented no evidence to show that Caucasian employees in her department were treated
differently and came forward with nothing but her own speculations about defendant’s motives in
evaluating her work performance. As the trial court found, “plaintiff’s assumptions and
conclusions about the work performed by and the supervision of other employees are insufficient
to establish disparate treatment.”
To the extent that plaintiff argues defendant’s conduct during the month prior to her
disability leave resulted in a hostile work environment, that claim also fails.4 The elements
4
We note that our Supreme Court has declined to decide the issue whether a valid claim of
hostile work environment can be made based on conduct or communication that is “not of a
sexual nature.” Quinto v Cross & Peters Co, 451 Mich 358, 368; 547 NW2d 314 (1996). But
see Downey v Charlevoix Co Bd of Rd Comm’rs, 227 Mich App 621; 576; NW2d 712 (1998)
(continued…)
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necessary to prove a prima facie case of discrimination based on hostile work environment
include:
(1) the employee belonged to a protected group; (2) the employee was subjected to
communication or conduct on the basis of [her protected status]; (3) the employee
was subjected to unwelcome ... conduct or communication [involving her
protected status]; (4) the unwelcome ... conduct was intended to or in fact did
substantially interfere with the employee's employment or created an intimidating,
hostile, or offensive work environment; and (5) respondeat superior. MCL §
37.2103(h); 37.2202(1)(a); MSA § 3.548(103)(h); 3.548(202)(1)(a). [Quinto v
Cross & Peters Co, 451 Mich 358, 369; 547 NW2d 314 (1996), quoting Radtke v
Everett, 442 Mich 368, 382-383; 501 NW2d 155 (1993).]
Plaintiff cites several alleged incidents that she claims establish she was subjected to a hostile
work environment during the months preceding her medical leave. Only two of those instances
arguably related to plaintiff’s race. None relate to her disability. Plaintiff claims that while
discussing the Malice Green murder trial, defendant Lorence made the statement “they always
cry racism when things don’t do their way.” Also, plaintiff claims that upon arriving to work
with a new hairstyle, defendant Lorence stated: “Here comes Whoopi Goldberg” and described
the hairstyle as “worms coming out of her head.” While the statements attributed to defendant
Lorence evidence a degree of insensitivity and ignorance, we cannot say that under the totality of
the circumstances, the alleged conduct rose to the level of creating a hostile work environment.
Quinto, supra at 369.5
III. Intentional infliction of emotional distress claim
Finally, plaintiff argues that the trial court erred in granting summary disposition of her
claim for intentional infliction of emotional distress. This tort has four elements: “(1) extreme
and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional
distress.” Haverbush v Powelson, 217 Mich App 228, 233-234; 551 NW2d 206 (1996).
“Liability for the intentional infliction of emotional distress has been found only where the
conduct complained of has been so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in
a civilized community.” Doe v Mills, 212 Mich App 73, 91; 536 NW2d 824 (1995). “Liability
does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other
trivialities.” Id. “Generally, the case is one in which the recitation of the facts to an average
member of the community would arouse his resentment against the actor, and lead him to
exclaim, ‘Outrageous!’” Roberts v Auto-Owners Ins Co, 422 Mich 594, 603; 374 NW2d 905
(1985), quoting Restatement Torts, 2d, § 46, comment d, pp 72-73. In reviewing a claim of
intentional infliction of emotional distress, the court must determine whether the defendant's
(…continued)
(involving a hostile work environment claim based on alleged age and handicap discrimination).
5
Given defendant’s legitimate, nondiscriminatory reasons for promoting Caucasian employees to
the positions that plaintiff sought, we do not consider plaintiff’s failure to gain promotion as a
factor contributing to a hostile work environment.
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conduct is sufficiently unreasonable as to be regarded as extreme and outrageous. Doe, supra at
92.
Plaintiff alleged that defendant Lorence caused her to suffer extreme emotional distress
through conduct that was extreme and outrageous so as to offend a reasonable person, reckless,
and done with the intent of causing plaintiff extreme humiliation. While some of the allegations,
if proven, were racially insulting, the evidence establishes that plaintiff did not complain about
the alleged conduct when it occurred and could not specify when it occurred. Only after
defendant Lorence began a plan to improve plaintiff’s work performance did plaintiff complain.
Further, Lorence’s assessment of plaintiff’s work performance was undertaken as part of
Lorence’s duties as plaintiff’s supervisor and plainly is not the type of conduct that would lead to
liability for the intentional infliction of emotional distress. The trial court did not err in granting
summary disposition to defendants on this claim.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Harold Hood
/s/ Brian K. Zahra
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