TIMOTHY CARLISLE V SARA LEE CORP
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STATE OF MICHIGAN
COURT OF APPEALS
TIMOTHY CARLISLE,
UNPUBLISHED
December 20, 1996
Plaintiff-Appellant,
v
No. 186191
LC No. 93-011824
SARA LEE CORPORATION,
Defendant-Appellee.
Before: Neff, P.J., and Hoekstra and G.D. Lostracco,* JJ.
PER CURIAM.
Plaintiff appeals from the trial court’s order granting summary disposition to defendant pursuant
to MCR 2.116(C)(10). We affirm.
Plaintiff began working for defendant on July 31, 1978. In May 1984, plaintiff sustained serious
injuries, including multiple fractures to his hip and leg in an automobile accident, and was placed on a
lengthy medical leave. Plaintiff was eventually allowed to return to work under restrictions implemented
by his doctor that defendant was able to accommodate. Subsequently, plaintiff was injured in a second
automobile accident and was granted another medical leave. After recovering from the second
accident, plaintiff requested to return to work with restrictions on a full-time basis in November 1990.
The restrictions placed on plaintiff were, if anything, less restrictive than those placed on him previously.
On January 3, 1991, defendant informed plaintiff that it could no longer reasonably accommodate him.
On the basis of this denial of employment, plaintiff filed this action alleging defendant violated the
Michigan Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq.
Plaintiff first argues that the trial court erred in summarily dismissing his handicap discrimination
claim. Specifically, plaintiff argues that the trial court erred in holding that no genuine issue of material
fact existed regarding the ability of defendant to accommodate plaintiff’s restrictions. We disagree.
Defendant’s duty with regard to accommodating its employees is set forth in MCL 37.1102(2);
MSA 3.550(102)(2), which provides:
* Circuit judge, sitting on the Court of Appeals by assignment.
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Except as otherwise provided in article 2, a person shall accommodate
a handicapper for purposes of employment, public accommodation,
public service, education, or housing unless the person demonstrates
that the accommodation would impose an undue hardship.
Additionally, this Court has held that a duty to accommodate does not extend to new job placement.
Hall v Hackley Hospital, 210 Mich App 48, 57; 532 NW2d 893 (1995). See also MCL
37.1210(15); MSA 3.550(210)(15).
In support of its motion for summary disposition, defendant offered the affidavit of its Human
Resources manager, Anthony M. Gerstberger. Gerstberger stated that because defendant had
implemented a system during plaintiff’s last medical leave where all of its employees rotate between
“light duty” and “heavy duty” work, plaintiff could not work solely in “rest” positions in order to
accommodate his restrictions as he had been allowed to do previously without denying other employees
access to those “rest” positions. In response to Gerstberger’s affidavit, plaintiff relies on a Human
Resources form as evidence that defendant has “light duty” work to offer to its employees. We find the
Human Resources form insufficient as a matter of law to rebut the affidavit. The Human Resources form
was unsigned, undated, and never connected with any supporting authority as having any applicability to
plaintiff’s case. Without a context as to how often, when, and in what manner the Human Resources
form is used, a reasonable person could not conclude, based on this form alone, that defendant could
reasonably accommodate plaintiff. Accordingly, we affirm the trial court’s grant of summary disposition.
Next, plaintiff argues that the trial court abused its discretion in denying plaintiff’s motion for
reconsideration. Specifically, plaintiff argues that the trial court abused its discretion in disregarding the
affidavit of John Terry that was submitted for the first time with the motion for reconsideration because it
was untimely. We disagree. Plaintiff recognizes that Michigan courts have held that untimely filed
affidavits may not be considered by a trial court when deciding motions for summary disposition. See
Prussing v General Motors Corp, 403 Mich 366, 369-370; 269 NW2d 181 (1978); Apfelblat v
Nat’l Bank Wyandotte-Taylor, 158 Mich App 258, 263; 404 NW2d 725 (1987). Nevertheless,
plaintiff argues that because the trial court “invited” plaintiff to file additional support, the Terry affidavit
should have been considered. We believe the record does not support plaintiff’s interpretation of what
the trial court “invited.” Actually, the trial court only indicated a willingness to consider documents that
it may have overlooked when considering the motion for summary disposition. Accordingly, the trial
court did not abuse its discretion by failing to consider Terry’s affidavit when ruling on plaintiff’s motion
for rehearing.
Affirmed.
/s/ Joel P. Hoekstra
/s/ Gerald D. Lostracco
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