LAMORIA v. HEALTH CARE & RETIREMENT CORPORATION

LAMORIA v HEALTH CARE & RETIREMENT CORPORATION Docket No. 199795. Released July 10, 1998, at 9:00 A.M.; vacated July 24, 1998. Before: Fitzgerald, P.J., and O’Connell and Whitbeck, JJ. Per Curiam. Plaintiff Barbara Lamoria appeals as of right the trial court’s grant of summary disposition. Lamoria filed this action after she was discharged from her employment at defendant Sun Valley Manor, Inc., a retirement home owned by defendant Health Care & Retirement Corporation (hcr). Defendant Marilyn K. Martin was, at the time of Lamoria’s discharge, the administrator of Sun Valley. In pertinent part, Lamoria alleges that her discharge (1) violated the prohibition of the state Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., against weight and age discrimination, (2) violated the Handicappers’ Civil Rights Act, MCL 37.1202(l)(b); MSA 3.550(202)(l)(b), with respect to handicap discrimination related to an injury that Lamoria suffered in the course of her employment, and (3) constituted illegal retaliation for plaintiffs seeking worker’s compensation benefits. Lamoria advanced additional claims on which the trial court also granted summary disposition to defendants, but Lamoria does not challenge the grant of summary disposition on those claims. In contrast, defendants assert that Lamoria was discharged in accordance with hcr’s policy of discharging employees who do not return to work after having been on a medical leave of absence for six months. We reverse the grant of summary disposition with respect to the claims at issue in this appeal and remand for further proceedings consistent with this opinion. But for MCR 7.215(H), we would affirm the trial court’s decision with respect to issue iv. However, as we will discuss more fully in this opinion, MCR 7.215(H) requires us to reverse with regard to issue iv. I. FACTS Lamoria has been a registered nurse since 1959 and was employed in that capacity (including time spent on leave) for nearly twenty years at Sim Valley, from September 9, 1975, until July 7, 1994. However, Lamoria stated in an affidavit that she was not officially notified that her employment had been terminated until October 1994. Lamoria alleged in her complaint that, at the time her employment was terminated, she was fifty-five years old, 5’ 7” tall and weighed about 240 pounds and that, previously, she had weighed as much as 311 pounds. Lamoria stated that she began working at Sun Valley as a staff nurse and was promoted in 1991 to the position of “Nurse (Unit) Manager.” According to Lamoria, her “last evaluation in August, 1993, stated that [she] had a ‘demonstrated loyalty’ to Sun Valley Manor and that [she] had the potential for promotion within hcr.” Ruth Wilcox, who also had worked at Sun Valley, testified in her deposition that she had the opportunity to review Lamoria’s work or watch her interact with patients. When asked for her opinion of Lamoria’s work performance as a nurse, Wilcox testified: I respect her. She has good standards. She’s honest and credible and trustworthy. She expressed and demonstrated a lot of behaviors that are consistent with a high degree of caring. I would describe her as dedicated. Wilcox did not recall having any problems with Lamoria during the time that Wilcox was serving as the internal administrator or director of nursing at Sun Valley. Lamoria stated in her affidavit that Martin was hired as the administrator of Sun Valley by Dan Livy, a regional manager for hcr in December 1993. Lamoria suffered a knee injury as a result of a fall at Sun Valley on August 9, 1993, during the course of her employment. Lamoria went on a medical leave from her emplpgnent in January 1994. Faith Hall indicated in her affidavit that she worked at Sun Valley as a “Nurse Consultant” when Martin was hired as the administrator for Sun Valley. Hall stated that, in her first meeting with Martin at Sun Valley, Martin proclaimed that she was going to “clean house” and that she intended to get rid of the employees who had been at Sun Valley the longest because they “would be the hardest to change.” Hall also stated that “Martin said that hcr sought her out for this position and brought her in specifically to clean out the older employees.” According to Hall, “Martin made comments about immediately terminating the director of nursing, several dietary department personnel, and some of the older nurses.” Hall stated that Martin and Livy referred to a “hit list” of employees whom they sought to terminate and that “in several instances [they] would ‘target’ an employee for termination, then begin to build a case for termination or instead force the person to resign.” Hall also stated that Martin and Livy “made critical and harsh remarks in [Hall’s] presence about the weight of some Sun Valley Manor personnel, including Annette Smith and Barbara Lamoria, in a manner that suggested to [Hall] that they intended to terminate people who they perceived as overweight.” Brenda LaVigne, who was employed by Sun Valley as a social worker, stated that, while she was at Sun Valley, Martin became the administrator. LaVigne made the following statements about Martin in her affidavit: 4. Marilyn Martin threatened to fire me on several occasions without justification. 5. Shortly after she started in December, 1993, Martin began to terminate several of the department heads[,] including musing supervisors. These employees were then replaced with younger employees. 6. Among the department heads or supervisors fired by Martin or forced to resign were Annette Smith, Director of Nursing; Sharon DeWhale, Director of Nursing; Donna Hair, Social Worker; Dennis Fox, Nurse Supervisor; and Belda Denzer, Nurse Supervisor. * * * 8. Martin did not like over-weight people. Martin made disparaging comments about heavy people, including Sun Valley Manor employees. 9. Annette Smith, Donna Hair and Barbara Lamoria were all overweight by Martin’s standards, and all were fired or forced to resign while Martin was Administrator. According to LaVigne, “Martin hired younger, more attractive people to enhance the ‘coiporate image’ of hcr and to replace the people that Martin wanted to terminate.” LaVigne also stated that Martin knew that Lamoria needed surgery to repair her knee and that Martin would be off work for a long time rehabilitating her knee. According to LaVigne, Martin did not want hcr to pay for the cost of this surgery or rehabilitation. Annette Smith-Jones indicated in her affidavit that she was employed as the director of nursing when Martin was hired as the administrator. According to Smith-Jones, Martin along with Livy “almost immediately began trying to fire [Smith-Jones] from [her] job.” SmithJones stated that, at meetings, “Martin often stated how she had no use for certain people, targeting in particular some of the muse unit managers and African-American licensed practical muses.” Defendants stress a provision of the “hcr Employee Handbook” regarding medical leaves that includes the statement, “Normally, a Medical Leave of Absence with extensions may not exceed six months.” However, Lamoria stated that she went to Sun Valley each month from February to August 1994 to complete the necessary forms to extend her leave of absence “for another month while HCR delayed my surgery.” Lamoria further stated that no one advised her during any of these visits that her leave would expire at some point or that she had to return to work by a certain date or face termination. Each time, Lamoria filled out a form on which she stated that her leave of absence was “work related” and that her estimated date of return to work was “undetermined.” Lamoria stated that, each time, Martin approved the leave form without modification. Further, according to Lamoria, neither Martin nor hcr ever stated on the form that the leave would expire at some point, although there is a space on the form to designate the end of a leave period. Lamoria also stated that she visited Sun Valley about ten times during her leave period to complete various paperwork and that she was given no notice of her impending termination during those visits. Kenneth Distler, M.D., an orthopedic surgeon, stated in an affidavit that he performed an arthroscopic procedure on Lamoria on January 10, 1994. The costs associated with this procedure, as well as benefits for partial wage loss and medical bills, were paid by ITT Hartford, which administered worker’s compensation claims for hcr. However, Dr. Distler stated that he thereafter determined that Lamoria’s left knee was not responding to treatment and that a total knee replacement was needed to restore her knee to “functionality” Dr. Distler stated that, in his opinion, Lamoria’s problem with her knee was caused by degenerative arthritis that was aggravated by the August 1993 injury. According to Dr. Distler, he requested authorization from Lamoria’s employer to have the cost of the surgery paid under an insurance policy covering work-related injuries “as the cause of [Lamoria’s] condition was at least partially related to a fall [Lamoria] had while on the job in August, 1993.” Dr. Distler stated that the surgery was not scheduled because of the uncertainty regarding Lamoria’s insurance coverage. He said that hcr never contacted his office to advise him whether hcr would pay for the cost of the surgery. Dr. Distler stated that, “[i]f Ms. Lamoria has surgery, [he] would expect her to return to a normal life, including productive work as a nurse, although she will have some restrictions on her work and activities for a brief period of time.” He stated that “Ms. Lamoria’s knee would improve with surgery because a replacement knee would have corrected not only the problems brought about by her fall, but also any of the degenerative arthritic problems that she has experienced.” Lamoria stated in her affidavit that she contacted hcr and ITT Hartford on several occasions from March to June 1994 “trying to get answers to why the surgery was not being done and about [her] condition, and each time [her] questions largely went unanswered or [she] was told that no decisions had yet been made.” Lamoria stated that she was told by Sun Valley personnel in May 1994 that her file had been “taken over” by Martin and Livy and that Martin had been in contact with hcr personnel who were in charge of worker’s compensation claims. Lamoria stated that it was about this time that her file was transferred within rTT Hartford from Susan Billiett to Wayne Beechum and that Beechum told her that he was taking over her file because hcr was not satisfied with the way that Billiett was handling her case. Lamoria stated that on June 29, 1994, she was finally told by Beechum that a decision had been made to deny her worker’s compensation coverage for her surgery. Lamoria further stated that Beechum told her, on June 29, 1994, that he was being pressured by hcr to deny the claim, that “he had ‘no alternative’ but to stop compensation payments because hcr had told him to do it” and that “hcr was ‘self funded’ for worker’s compensation insurance, thus hcr could tell him to stop payments, a fact noted in [Lamoria’s] records of the conversation.” n. REVIEW OF A GRANT OF SUMMARY DISPOSITION We review a trial court’s grant of summary disposition de novo. Paul v Lee, 455 Mich 204, 210; 568 NW2d 510 (1997). In reviewing a motion for summary disposition based on MCR 2.116(C)(10), we review the documentary evidence and determine whether a genuine issue of material fact exists. Paul, supra at 210. In doing so, we draw all reasonable inferences in the nonmovant’s favor and give the nonmovant the benefit of any reasonable doubt. Id. “Summary disposition is appropriate only if the court is satisfied that it is impossible for the nonmoving party to support his claim at trial because of a deficiency that cannot be overcome.” Id. However, a party opposing a motion for summary disposition under MCR 2.116(C)(10) may not rest on its pleadings, but must come forward with evidence to show the existence of a material factual dispute. Paul, supra at 210-211. If the nonmoving party fails to show that a material fact is at issue, the motion would be properly granted. Id. at 211. Granting a motion for summary disposition is especially suspect where motive and intent are at issue or where the credibility of a witness or deponent is crucial. Vanguard Ins Co v Bolt, 204 Mich App 271, 276; 514 NW2d 525 (1994). m. LAMORIA’S CLAIMS UNDER THE STATE CIVIL RIGHTS ACT A. GENERAL PRINCIPLES MCL 37.2202; MSA 3.548(202) provides in part: (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. [Emphasis added.] The trial court in its written opinion provided the following explanation for its grant of summary disposition to defendants with regard to Lamoria’s claims that her discharge was based on weight and age discrimination contrary to the state Civil Rights Act: In a discrimination case, the plaintiff has the initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence. If the plaintiff is successful, then the burden of proof shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. The plaintiff then has the burden to prove that defendants!’] reason for its actions was a mere pretext. Plieth v St Raymond Church, 210 Mich App 568, 571 [534 NW2d 164] (1995); Bamell v Taubman Co, Inc, 203 Mich App 110, 120 [512 NW2d 13] (1993). To establish a prima facie case of employment discrimination, the plaintiff must demonstrate, as a threshold matter, that she was qualified for the position. Ackerman v Diamond Shamrock Corp, 670 F2d 66, 69 (CA 6, 1982). In Baughey v Tecumseh Country Club, 778 F Supp 354 (ED Mich, 1991), vacated 989 F2d 498 (CA 6, 1993), aff’d 1 F3d 1240 (CA 6, 1993), the court found that a former employee failed to establish a prima facie case of age or sex discrimination where she was unable to perform her job due to an on-the-job injury prior to her discharge. While Ms. LaMoria may have all necessary state licensures and other qualifications for the position of Nurse Manager or Staff Nurse, it is not disputed that she cannot physically perform either position. Therefore, she has failed to establish a prima facie case of employment discrimination. Defendants!’] motion for summary disposition is granted as there is no evidence to establish a material factual dispute. Since plaintiff has not established a prima facie case, the court need not consider the disparate treatment nor the intentional discrimination claims. With regard to Lamoria’s claims of weight and age discrimination, the trial court’s analysis overlooks that the prima facie case, as part of a mechanism for shifting the burden of producing evidence, is merely one method that an alleged victim of illegal discrimination may use in attempting to show disparate treatment in violation of the state Civil Rights Act. The “prima facie case” derives from the construct established in McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), for analysis of employment discrimination claims under title VII of the federal Civil Rights Act that involve only circumstantial evidence of discrimination. See Harrison v Olde Financial Corp, 225 Mich App 601, 606-607; 572 NW2d 679 (1997). However, where a plaintiff offers direct evidence of discriminatory animus by a decisionmaker in connection with a claim of employment discrimination, the prima facie case construct, as part of the McDonnell Douglas framework, is inapplicable: [W]hile the McDonnell Douglas burden-shifting analysis is appropriate in cases without direct evidence of discrimination, this case presents a different situation. Federal case law holds, and we agree, that the McDonnell Douglas evidentiary framework does not apply when a plaintiff presents direct evidence of discriminatory animus. Kresnak v Muskegon Heights, 956 F Supp 1327 (WD Mich, 1997); see also Moiras v Amoco Oil Co, 424 Mich 675, 683-684; 385 NW2d 586 (1986). “Direct evidence and the McDonnell Douglas formulation are simply different evidentiary paths by which to resolve the ultimate issue of [the] defendant’s discriminatory intent.” Blalock v Metals Trades, Inc, 775 F2d 703, 707 (CA 6, 1985). [Harrison, supra at 609-610; see also Downey v Charlevoix Co Bd of Co Rd Comm’rs, 227 Mich App 621, 633; 576 NW2d 712 (1998).] Accordingly, where a plaintiff presents direct evidence of discriminatory animus, it is erroneous for a trial court to use the McDonnell Douglas framework. Harrison, supra at 613. This Court in Harrison, id. at 610, further described what constitutes direct evidence of discrimination: “Direct evidence” has been defined in the Sixth Circuit Court of Appeals as evidence that, if believed, “ ‘ “requires the conclusion that unlawful discrimination was at least a motivating factor.” ’ ” Kresnak, supra at 1335 (citations omitted). For example, racial slurs by a decisionmaker constitute direct evidence of racial discrimination that is “ ‘sufficient to get the plaintiff’s case to the jury.’ ” Id. (citation omitted). Cases involving direct evidence of discriminatory animus are sometimes called “mixed motives” cases in light of the presentation of such evidence by the alleged victim of discrimination ordinarily coupled with the presentation of other evidence by the employer of legally permissible motives for an adverse employment-related decision: Thus, when direct evidence of discrimination is involved, we believe that federal case law provides appropriate guidance for analyzing discrimination claims arising under the Michigan Civil Rights Act. In the instant case, plaintiff testified in her deposition that defendant’s employees made derogatory comments about her race. Because of plaintiff’s direct evidence of discrimination, this case presents a question of mixed motives, one in which defendant’s decision not to hire plaintiff could have been based on several factors, legitimate ones as well as legally impermissible ones. [Harrison, supra at 610.] Direct proof of discriminatory animus ordinarily precludes a grant of summary disposition: To summarize, we hold that the following principles of proof apply in a typical single-plaintiff, mixed-motive employment discrimination case. First, as with circumstantial discrimination cases, in a case involving direct evidence of discrimination, the plaintiff always bears the burden of persuading the trier of fact that the employer acted with illegal discriminatory animus. Second, whatever the nature of the challenged employment action, the plaintiff must establish evidence of the plaintiff’s qualification (or other eligibility) and direct proof that the discriminatory animus was causally related to the decisionmaker’s action. Upon such a presentation of proofs, an employer may not avoid trial by merely “articulating” a nondiscriminatory reason for its action. Under such circumstances, the case ordinarily must be submitted to the factfinder for a determination whether the plaintiffs claims are true. [Id. at 612-613; (emphasis added).] In this case, viewing the evidence favorably to Lamoria, she was as “eligible” to be on a medical leave as was any other employee who was, as a practical matter, unable to perform the employee’s job duties because of an injury. In the context of alleged discrimination against an incumbent employee with regard to medical leave, it is not sensible that the employee should have to show that the employee was “qualified” to physically perform the job at the time of discharge. Otherwise, an employer would be free to discriminate against an individual in denying a medical