Dolores Haddix, Plaintiff-appellant, v. Ralston Purina Company, a Missouri Corporation,defendant/third-party Plaintiff-appellee, v. American Federation of Grain Millers Afl-cio, Local Unionno. 66, Third-party Defendant-appellee, 949 F.2d 397 (6th Cir. 1991)

Plaintiff, Dolores Haddix, filed suit against the defendant, Ralston Purina Company (Ralston), claiming a violation of Michigan Handicappers' Civil Rights Act (HCRA), Mich.Comp.Laws Ann. § 37.1101 et seq. The case was removed to federal court on diversity grounds, and Ralston then filed a third-party action against the American Federation of Grain Millers AFL-CIO, Local Union No. 66. Both defendants moved for summary judgment, which was granted. The district court concluded that plaintiff was not handicapped within the meaning of the applicable statute because her injuries and work restrictions were related to her ability to perform the duties of her job as a mill operator.

Upon a review of the record, we agree with the decision reached in the district court and affirm on the basis of Judge Enslen's well-reasoned written opinion. We write briefly only for additional clarification.

Haddix began working for Ralston in 1981, and her work progressed without incident until she suffered a series of injuries beginning in 1986 when she suffered a lowback strain. One month later, she incurred a knee injury, which required surgery, and she missed three months of work. Upon her return to work, she had to be assigned to light duty for a period of time. Four months after returning to work, she sustained another back injury.

In March 1987, the plaintiff suffered a serious hand injury, which required surgery. She did not return to work until October 1987. She was unable to perform the duties of her old job, and she tried a number of other positions without success. In December 1987, with the plaintiff's consent, she was moved from her bid job to the miscellaneous labor pool with the hope that she could ultimately return to her bid job. The miscellaneous labor pool is comprised of seniority employees who do not hold a regular job. It is not limited to injured employees or employees on light duty. Those in the pool fill in temporarily on bid jobs or perform other duties based on their qualifications and Ralston's scheduling needs. Employees working in the pool are eligible for overtime work.

Plaintiff continued working in the pool until March 1988, when she took a five-week medical leave for additional surgery on her hand. In July 1988, it became apparent to all that Haddix was not going to be able to return to her bid job, and she was reclassified to light duty status. During the seven months that plaintiff had worked out of the pool, she was unable to perform many of the miscellaneous tasks assigned, including work assigned during periods of overtime.

After the assignment to light duty work, the problem arose which precipitated this lawsuit. Light duty employees are not eligible for overtime work. This disqualification is a result of a stipulated arbitration decision entered into by Ralston and the Union in 1977. There is no dispute as to the rationale underlying this agreement. For Ralston, it provided a way to keep employees at work when they could no longer perform their bid jobs. From the Union's perspective, the policy prevented light duty employees, who, in essence, have a job created for them, from bumping employees who were still performing their bid jobs.

It is plaintiff's position that, since she can perform light work, depriving her of overtime discriminates against her on the basis of a handicap in violation of the applicable Michigan statute.

In order to establish a discrimination claim under the HCRA, a plaintiff must 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." Ashworth v. Jefferson Screw Prods., Inc., 176 Mich.App. 737, 743, 440 N.W.2d 101, leave to appeal denied, 433 Mich. 873, 447 N.W.2d 690 (1989).

It is undisputed that plaintiff could no longer perform her bid job. Therefore, under the Handicappers' Act, she is not handicapped relative to that position since, by definition, only "unrelated" handicaps are taken into account. Plaintiff essentially seeks an interpretation of the Handicappers' Act which would place a duty upon the employer to create a job for her which, once created, would carry full rights to overtime work. This approach must be rejected for two reasons. First, it is clear that no such duty of accommodation is placed on employers. Carr v. General Motors Corp., 425 Mich. 313, 389 N.W.2d 686 (1986). Second, the employer, to some degree, has created a job for plaintiff by finding work within the plant that she can do. However, she takes such new work with all the restrictions it carries, which, in this case, includes no right to overtime. Plaintiff is not being denied overtime because of her handicap but because of a valid agreement existing between management and the Union. It would be inimical to the interests of the very class of workers that the Handicappers' Act is trying to protect to conclude that an employer, who goes beyond the statute's requirements by finding a job for a handicapped person, must offer that job free of any restrictions it would carry if held by someone else. We also note in this regard that plaintiff could not perform the full range of light duties and worked only in a kind of sub-class of light duty.¹  Judge Enslen correctly stated:

I find that temporary accommodative measures, instituted while an injured or ill employee is recuperating or until a new, permanent position might be found, do not constitute new positions or jobs within the meaning of the Handicappers' Act. Thus, the custom-made combination of duties to which plaintiff was assigned while on light duty status does not constitute a new position or job.

(App. 26-27).

AFFIRMED.