MICHAEL GEROW V CITY OF SAGINAW
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STATE OF MICHIGAN
COURT OF APPEALS
MICHAEL GEROW,
UNPUBLISHED
October 30, 2001
Plaintiff-Appellant,
V
No. 223355
Saginaw Circuit Court
LC No. 98-025691-CZ
CITY OF SAGINAW,
Defendant-Appellee.
Before: O’Connell, P.J., and White and Smolenski, JJ.
O’CONNELL, J. (dissenting).
I respectfully dissent. At the motion for summary disposition, plaintiff failed to present
any medical evidence to contradict defendant’s assertions that his diabetes rendered him unable
to perform his duties as a firefighter. A mere promise to produce evidence is not sufficient to
withstand a motion for summary disposition under MCR 2.116(C)(10). Maiden v Rozwood, 461
Mich 109, 121; 597 NW2d 817 (1999). I would affirm the trial court’s judgment.
Plaintiff filed the instant action on October 23, 1998. Defendant moved for summary
disposition pursuant to MCR 2.116(C)(10) on April 23, 1999. Specifically, defendant asserted
that plaintiff failed to set forth a prima facie claim of discrimination under the Persons with
Disabilities Civil Rights Act (PWDCRA), MCL 37.1101 et seq., because his diabetes is not
unrelated to his ability to perform his job. In support of its motion, defendant presented the
medical opinions of two physicians who had met with and examined plaintiff, and who opined
that the risk of hypoglycemia resulting from plaintiff’s diabetes rendered him unable to perform
his firefighting functions.
In his May 26, 1999 response to defendant’s motion for summary disposition, plaintiff
argued that he was able to perform all of the essential duties of a firefighter. In support of this
argument, plaintiff presented his own deposition testimony, as well as the deposition testimony
of retired fire chief Timothy Gray and retired fire captain Thomas Callison. However, plaintiff
failed to present any medical evidence to contradict defendant’s assertion that his diabetes
rendered him unable to perform his duties as a firefighter.1 During the subsequent hearing on
1
Plaintiff also presented the medical records of his family physician, Charles N. Koenig, M.D.,
relating to plaintiff’s treatment. The majority concludes that these records “supported plaintiff’s
argument that his diabetes did not prevent him from performing the duties of a front-line
(continued…)
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defendant’s motion for summary disposition, the trial court inquired whether plaintiff had any
medical evidence to refute defendant’s contention that his diabetes rendered him unable to
perform his job. Plaintiff’s attorney indicated that plaintiff did not have any such medical
evidence, but that she intended to depose plaintiff’s family physician, Charles N. Koenig, M.D.2
In its ruling from the bench on June 14, 1999, the trial court found that summary disposition was
appropriate because plaintiff did not offer any evidence to rebut defendant’s claim that his
diabetes rendered him unable to perform his firefighting functions.
On appeal, the majority sua sponte3 raises the issue that summary disposition was
prematurely granted. Specifically, the majority recites the maxim that summary disposition may
be premature where discovery on a disputed issue is not complete. See Village of Dimondale v
Grable, 240 Mich App 553, 566; 618 NW2d 23 (2000). According to the majority, summary
disposition was improperly granted because further discovery was likely to uncover factual
support for plaintiff’s position. In support of this conclusion, the majority points to a letter
written by Koenig on June 29, 1999, presented to the trial court for the first time in support of
plaintiff’s July 26, 1999 motion for reconsideration. In my view, it is inappropriate for this
Court to rely on Koenig’s letter as a basis for concluding that further discovery was likely to
yield factual support for plaintiff’s position, given that this letter was not before the trial court
when it considered the motion for summary disposition. Spiek v Dept’t of Transportation, 456
Mich 331, 338 n 10; 572 NW2d 201 (1998); Maiden, supra at 126 n 9.
Moreover, in Maiden, our Supreme Court stated that summary disposition is appropriate
where the nonmoving party does not offer evidence setting forth specific facts showing a genuine
issue for trial. Id. at 120; see also MCR 2.116(G)(4).
A litigant’s mere pledge to establish an issue of fact at trial cannot survive
summary disposition under MCR 2.116(C)(10). The court rule plainly requires
the adverse party to set forth specific facts at the time of the motion showing a
genuine issue for trial.
Today we clarify the correct legal standard under MCR 2.116(C)(10)
because our Court has inconsistently applied the standard since the 1985
amendment of the court rules. The reviewing court should evaluate a motion for
summary disposition under MCR 2.116(C)(10) by considering the substantively
admissible evidence actually proffered in opposition to the motion. A reviewing
court may not employ a standard citing the mere possibility that the claim might
(…continued)
firefighter.” Ante, at 5. However, a close review of these medical records reveals that plaintiff
complained to Koenig on May 26, 1996 that getting up in the middle of the night to fight fires
“thr[ew] him off.” Further, according to Koenig’s records, plaintiff complained to Koenig on
May 10, 1996 that “he doesn’t feel good, he doesn’t function well, and he knows he has got to do
something.” According to the record, plaintiff began taking insulin the next day.
2
Plaintiff’s attorney did not give any reason for the failure to depose Koenig, nor did plaintiff
submit an affidavit indicating why an affidavit setting forth the substance of Koenig’s testimony
was not procured. See MCR 2.116(H).
3
Plaintiff did not raise this issue in the lower court, nor has plaintiff raised this issue on appeal.
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be supported by evidence produced at trial. A mere promise is insufficient under
our court rules. [Maiden, supra at 121 (citations omitted; emphasis supplied).]
A prima facie case of discrimination under the PWDCRA is established where the
plaintiff shows that “(1) he is ‘disabled’ as defined by the statute, (2) the disability is unrelated to
the plaintiff’s ability to perform the duties of a particular job, and (3) the plaintiff has been
discriminated against in one of the ways set forth in the statute.” Chiles v Machine Shop, Inc,
238 Mich App 462, 473; 606 NW2d 398 (1999) (emphasis supplied); see also Michalski v BarLevav, 463 Mich 723, 730; 625 NW2d 754 (2001); MCL 37.1103(d)(i)(A); MCL 37.1103(l)(i);
MCL 37.1202(1)(b).
In the instant case, defendant set forth documentary evidence
demonstrating that plaintiff’s condition, specifically the risk of experiencing hypoglycemia,
rendered plaintiff unable to perform the duties of his job as a firefighter. In contrast, plaintiff did
not set forth any medical evidence indicating that his diabetes would not affect his ability to
carry out his job. Because plaintiff did not present sufficient evidence to create a triable dispute
with regard to this issue, the trial court properly granted summary disposition in favor of
defendant. I would affirm.
/s/ Peter D. O’Connell
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