JOYCE KING V AMERICAN AXLE & MFG INC
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STATE OF MICHIGAN
COURT OF APPEALS
JOYCE KING,
UNPUBLISHED
June 4, 2009
Plaintiff-Appellant,
v
No. 281928
Wayne Circuit Court
LC No. 06-601881-CD
AMERICAN AXLE & MANUFACTURING,
INC.,
Defendant-Appellee.
Before: Markey, P.J., and Fitzgerald and Gleicher, JJ.
PER CURIAM.
Plaintiff appeals as of right a circuit court order granting defendant’s motion for summary
disposition pursuant to MCR 2.116(C)(10), which dismissed plaintiff’s claims for violation of
the Michigan Persons with Disabilities Civil Rights Act (PWDCRA), MCL 37.1101 et seq., and
intentional infliction of emotional distress. Plaintiff also challenges the circuit court’s
postjudgment order awarding defendant case evaluation sanctions. We affirm.
I. Summary Disposition
This Court reviews de novo a circuit court’s summary disposition ruling. Trost v
Buckstop Lure Co, Inc, 249 Mich App 580, 583; 644 NW2d 54 (2002). A motion under MCR
2.116(C)(10) tests the factual support for a claim. Lewis v LeGrow, 258 Mich App 175, 192; 670
NW2d 675 (2003). This Court must consider the pleadings and any affidavits, depositions, and
other documentary evidence submitted by the parties in the light most favorable to the
nonmoving party to determine whether any genuine issue of material fact exists for trial, or
whether the moving party was entitled to judgment as a matter of law. Michigan Ed Employees
Mut Ins Co v Turow, 242 Mich App 112, 114-115; 617 NW2d 725 (2000).
A. PWDCRA
The PWDCRA prohibits discrimination against individuals because of their handicapped
status. The act intends to mandate the employment of a handicapped person “to the fullest extent
reasonably possible.” Peden v Detroit, 470 Mich 195, 203; 680 NW2d 857 (2004) (internal
quotation omitted). The act prohibits an employer from taking adverse employment actions
against an individual “because of a disability . . . that is unrelated (or not directly related) to the
individual’s ability to perform the duties of a particular job or position.” Id. at 203-204
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(alteration in original), quoting MCL 37.1202(1)(a). The plaintiff bears the burden of proving a
violation of the act. Id. at 204. To establish a prima facie case of discrimination, plaintiff here
had to show that (1) she suffers a disability as defined in the act, (2) her disability is unrelated to
her ability to perform her job duties, and (3) defendant discriminated against her in one of the
ways delineated in the act. Id.; Chiles v Machine Shop, Inc, 238 Mich App 462, 473; 606 NW2d
398 (1999). The PWDCRA defines a “disability” as (1) a “determinable physical or mental
characteristic of an individual” that “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[,]” (2) a history of such a determinable physical or mental characteristic, or (3)
“[b]eing regarded as having” such a determinable physical or mental characteristic. MCL
37.1103(d); Peden, supra at 204.
Plaintiff concedes that she does not have an actual disability as defined in the PWDCRA,
but avers that she nonetheless may recover under the act because defendant perceived her to have
a disability. Defendant may face liability for violating the PWDCRA if it discriminated against
plaintiff on the basis of a perceived disability. Chiles, supra at 475. To qualify as disabled on
the basis of a perceived disability, a plaintiff must prove (1) that her employer regarded her as
having a determinable physical or mental characteristic, (2) “the perceived characteristic was
regarded as substantially limiting one or more of the plaintiff’s major life activities,” and (3) “the
perceived characteristic was regarded as being unrelated either to the plaintiff’s ability to
perform the duties of a particular job or position or to the plaintiff’s qualifications for
employment or promotion.” Michalski v Bar-Levav, 463 Mich 723, 731-732; 625 NW2d 754
(2001).
We reject plaintiff’s contention that she established a prima facie case of discrimination
under the PWDCRA by submitting evidence that raised a genuine issue of material fact whether
defendant regarded her as having a condition that substantially limited the major life activity of
working. To prevail on her claim, plaintiff must show that defendant regarded her as having a
substantial limitation in performing “at least a wide range of jobs.” Chiles, supra at 478.
Viewed most favorably to plaintiff, the evidence submitted by the parties showed that defendant
remained willing to return plaintiff to work, but could not find work at its plant that she could
perform consistent with the several medical restrictions that doctors imposed on her.1 The
evidence simply does not give rise to a genuine issue of fact that defendant perceived plaintiff as
substantially limited in performing a wide range of jobs. Id. at 478 n 5 (noting that the available
evidence “merely showed that plaintiff was not recalled for any jobs, not that defendant believed
that plaintiff was physically unable to do all the jobs,” and that “the fact that plaintiff was not
recalled to any job . . . is not sufficient as a matter of law to support a claim of discrimination
based on the employer’s perception that plaintiff was disabled”). The circuit court thus correctly
1
The restrictions included (1) no lifting more than 10 pounds repetitively, (2) no lifting more
than 15 to 20 pounds occasionally, (3) avoiding overhead activity, (4) no vibrating or torquing
tools, (5) no pushing or pulling more than 15 pounds, (6) “[p]redominantly sit-down job with
sit/stand option,” (7) no squatting, bending, kneeling, or climbing, and (8) no prolonged walking.
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determined that plaintiff failed to demonstrate that she had either an actual or perceived disability
within the meaning of the PWDCRA, and properly dismissed the PWDCRA claim.
B. Intentional Infliction of Emotional Distress
To support a claim of intentional infliction of emotional distress, a plaintiff must prove
the following elements: (1) extreme and outrageous conduct, (2) intent or recklessness, (3)
causation, and (4) severe emotional distress. Hayley v Allstate Ins Co, 262 Mich App 571, 577;
686 NW2d 273 (2004). The offending conduct must be “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.” Id. “It is for the trial court to
initially determine whether the defendant’s conduct may reasonably be regarded as so extreme
and outrageous as to permit recovery.” Id. “But where reasonable individuals may differ, it is
for the jury to determine if the conduct was so extreme and outrageous as to permit recovery.”
Id.
Plaintiff maintains that evidence that defendant breached a grievance settlement and gave
preferential treatment to worker’s compensation employees factually supports her claim for
intentional infliction of emotional distress. However, the evidence does not support that
defendant breached the grievance settlement. Contrary to plaintiff’s suggestion, defendant never
specifically agreed that it would find work for plaintiff; defendant only agreed to abide by the
impartial medical opinion (IMO) findings and return plaintiff to available work compatible with
the restrictions imposed. Furthermore, plaintiff has failed to establish anything rising to the level
of “outrageous” about defendant’s practice of giving job return preference to worker’s
compensation employees. Consequently, the circuit court properly dismissed plaintiff’s claim
for intentional infliction of emotional distress.
II. Case Evaluation Sanctions
Plaintiff additionally avers that the circuit court erred in awarding defendant case
evaluation sanctions pursuant to MCR 2.403. We decline to address this issue for lack of
jurisdiction.
Under MCR 7.203(A)(1), this Court has jurisdiction of an appeal of right filed from a
“final judgment or final order,” as defined in MCR 7.202(6). The circuit court’s October 23,
2007 order granting defendant summary disposition constituted a “final order” under MCR
7.202(6)(a)(i), because it was the first order that disposed of all the claims and adjudicated the
rights and liabilities of all the parties. Baitinger v Brisson, 230 Mich App 112, 116; 583 NW2d
481 (1998). Plaintiff timely filed a claim of appeal from that order on November 9, 2007.
Although a party who files a claim of appeal from a final order may raise on appeal issues related
to other orders in the case, Bonner v Chicago Title Ins Co, 194 Mich App 462, 472; 487 NW2d
807 (1992), the party may not challenge subsequent orders entered after the claim of appeal has
been filed. Gracey v Grosse Pointe Farms Clerk, 182 Mich App 193, 197; 452 NW2d 471
(1989). The circuit court entered its order awarding case evaluation sanctions on December 14,
2007, after plaintiff had filed her claim of appeal from the order granting summary disposition.
Plaintiff could have filed a separate appeal by right from the December 14, 2007 order because
that order also qualifies as a “final order.” MCR 7.202(6)(a)(iv) (defining “final order” as
including “a postjudgment order awarding or denying attorney fees and costs under MCR
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2.403”). Because plaintiff did not do so, we do not possess jurisdiction to review this issue.
McDonald v Stroh Brewery Co, 191 Mich App 601, 609; 478 NW2d 669 (1991).
Affirmed.
/s/ Jane E. Markey
/s/ E. Thomas Fitzgerald
/s/ Elizabeth L. Gleicher
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