Failure to Accommodate Cases

SMITH v GOODWILL INDUSTRIES OF WEST MICHIGAN, INC Docket No. 218795. Submitted November 8, 2000, at Grand Rapids. Decided December 1, 2000, at 9:15 A.M. Tamera Smith brought an action in the Muskegon Circuit Court against Goodwill Industries of West Michigan, Inc., alleging discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.-, MSA 3.548(101) et seq., and violation of the federal Family and Medical Leave Act (fmla), 29 USC 2601 et seq. The action was based on the plaintiff’s dismissal from employment when she returned to work following a maternity leave taken pursuant to the fmla. The defendant alleged that the plaintiff’s position had been eliminated under a corporate restructuring plan. The court, James M. Graves, Jr., J., granted summary disposition in favor of the defendant. The plaintiff appealed. The Court of Appeals held: 1. The court properly applied the burden-shifting analysis first established in McDonnell Douglas Corp v Green, 411 US 792 (1973), in granting summary disposition of the claim alleging violation of the fmla. The plaintiff established a prima facie case of a violation of the fmla, the defendant then met its burden of demonstrating that there was a nondiscriminatory reason for its actions, and the plaintiff then failed to meet her burden of establishing a genuine issue of material fact regarding whether the defendant’s stated reason for eliminating the plaintiff’s position was unworthy of belief. The defendant raised the issue whether the plaintiff would have been entitled to her position had she not taken the leave and, consequently, the question of intent was relevant, and the McDonnell Douglas analysis was appropriately applied. 2. The court erred in requiring the plaintiff to establish a prima facie case of gender discrimination by showing that she was replaced by a person who was not a member of her protected class. The court erred in granting summary disposition of this claim without considering the plaintiff’s argument that the defendant acted discriminatorily by treating her different from a similarly situated male employee. However, reversal is not required because the plaintiff failed to establish that she was treated different from a similarly situated male employee. 3. The plaintiff failed to meet her burden with regard to her pregnancy discrimination claim that was based on disparate treatment. The plaintiff failed to show that the defendant had a discriminatory intent and therefore failed to establish a prima facie case. Affirmed. 1. Motions and Orders — Summary Disposition — Family and Medical Leave Act. The burden-shifting analysis applicable in some employment discrimination actions that was established in McDonnell Douglas Gorp v Green, 411 US 792 (1973), applies in cases involving alleged violations of the Family and Medical Leave Act; in the summary disposition context, the plaintiff employee must raise a genuine issue of material fact with regard to each element of the prima facie case; once that has been accomplished the burden shifts to the defendant employer to offer a legitimate nondiscriminatory reason for its employment decision; if the defendant produces such a legitimate nondiscriminatory reason, the burden reverts to the plaintiff to show that there is a genuine dispute of material fact regarding whether the defendant’s proffered reason for the challenged action is pretextual or unworthy of belief (29 USC 2601 et seq.). 2. Motions and Orders — Summary Disposition — Family and Medical Leave Act. The question of intent may become relevant once one of the parties to an action alleging a violation of the Family and Medical Leave Act raises the issue whether a right, benefit, or position is one to which the plaintiff employee would have been entitled had the plaintiff not taken the leave or whether the defendant employer has taken adverse action against the plaintiff for having exercised a right under the act; in a summary disposition context, once the question of intent is relevant, application of the burden-shifting analysis established in McDonnell Douglas Corp v Green, 411 US 792 (1973), is appropriate (29 USC 2601 et seq.). 3. Civil Rights — Employment Discrimination — Gender Discrimination. A female employee who brings an action under the Civil Rights Act alleging that her employer acted discriminatorily by treating her different from a similarly situated male employee must establish a prima facie case by showing that she was a member of a protected class, that she was subject to an adverse employment action, that she was qualified for the position, and that others, similarly situated and outside the protected class, were unaffected by the employer’s adverse conduct (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 4. Civil Eights — Employment Discrimination — Pregnancy. A plaintiff in an action under the Civil Rights Act alleging employment discrimination attributable to the plaintiff’s pregnancy and basing the claim on a “disparate treatment” theory must establish a prima facie case by showing the defendant had a discriminatory motive (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). Bott & Spencer, P.C. (by Timothy J. Bott), for the plaintiff. Warner Norcross & Judd LLP (by Paul T. Sorensen and Daniel P. Ettingef), for the defendant. Before: Neff, P.J., and Murphy and Griffin, JJ. Per Curiam. Plaintiff appeals as of right from the circuit court’s grant of summary disposition in favor of defendant. We affirm. Plaintiff was hired by defendant in December 1993 as director of placement services. In that position, plaintiff was responsible for managing defendant’s “community placement program,” which locates employment for disabled persons. On December 8, 1995, plaintiff took a maternity leave pursuant to the Family and Medical Leave Act (fmla), 29 USC 2601 et seq. When plaintiff returned to work as scheduled on March 11, 1996, her supervisor, Dan Christensen, informed her that her position had been eliminated under a corporate restructuring plan, and that, consequently, she was dismissed from employment. According to Richard Carlson, defendant’s president, defendant began considering a reorganization of its management staff in 1994 because of changes mandated by welfare reform, school-to-work legislation, and the federal Job Training Partnership Act, PL 97-300, 96 Stat 1322, especially under directives of the Michigan Jobs Commission. The restructuring plan would streamline defendant’s management structure to reflect an integrated service delivery system, rather than the previous categorical program model. The plan eliminated the positions of director of placement, assessment counselor, director of assessment, and work activities program director, which were geared to specific programs, and created a new community services manager position to oversee all community services operations. The community services manager assumed, in part, the directors’ responsibilities. Diana Briggs, defendant’s assessment counselor, was notified in late September 1995 that she would be dismissed as a result of corporate restructuring. According to Christensen’s affidavit, the management restructuring plan was incorporated into defendant’s October 1995 proposed budget and was approved by defendant’s board of directors in February 1996. Lynne Spencer subsequently was hired as the community services manager. Richard Tejchma, the director of assessment, whose position was eliminated, was assigned a position as director of vocational evaluations. In October 1997, plaintiff filed the instant action against defendant. In count I of her complaint, plaintiff alleged that defendant discriminated against her on the basis of her gender and her pregnancy in violation of the Civil Rights Act (cra). In count II, plaintiff alleged that defendant violated the fmla by dismissing her because of her decision to take maternity leave. The trial court granted summary disposition in favor of defendant on both counts pursuant to MCR 2.116(0X10). i Plaintiff first argues that the trial court improperly granted summary disposition of her fmla claim. We disagree. We review the trial court’s grant of summary disposition de novo. Pinckney Community Schools v Continental Casualty Co, 213 Mich App 521, 525; 540 NW2d 748 (1995). Subsection 2614(a)(1) of the fmla, 29 USC 2614(a)(1), provides: (a) Eestoration to position (1) In general Except as provided in subsection (b) of this section, any eligible employee who takes leave under section 2612 of this title for the intended purpose of the leave shall be entitled, on return from such leave— (A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or (B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment. Plaintiff argues that summary disposition was improper because defendant conceded that plaintiff had established a prima facie case of a violation of fmla § 2614. Thus, plaintiff contends that a jury should have decided whether defendant’s stated reasons for terminating plaintiff’s employment were legitimate and unrelated to plaintiff’s decision to take maternity leave pursuant to the fmla. We found no Michigan case addressing the issue raised by plaintiff under the fmla. However, review by this Court of the federal law regarding this federal statute is proper. See Markis v Grosse Pointe Park, 180 Mich App 545, 553; 448 NW2d 352 (1989). In Morgan v Hilti, Inc, 108 F3d 1319 (CA 10, 1997), the Tenth Circuit Court of Appeals explained the proper analytical framework for addressing alleged violations of the fmla. The court noted that the “burden-shifting analysis” first established in McDonnell Douglas Corp v Green, 411 US 792, 802-804; 93 S Ct 1817; 36 L Ed 2d 668 (1973), is applicable to cases involving alleged violations of the fmla. Morgan, supra at 1322-1323. Accordingly, the Morgan court stated: In the summary judgment context, a plaintiff initially must raise a genuine issue of material fact on each element of the prima facie case. After establishment of a prima facie case, the burden shifts to the employer to offer a legitimate nondiscriminatory reason for its employment decision. If the employer comes forward with a nondiscriminatory reason for its actions, the burden then reverts to the plaintiff to show that “there is a genuine dispute of material fact as to whether the employer’s proffered reason for the challenged action is pretextual — i.e., unworthy of belief.” [Id. at 1323, quoting Randle v City of Aurora, 69 F3d 441, 451 (CA 10, 1995) (citations omitted).] Applying the McDonnell Douglas analysis in the present case, it is clear that plaintiff established a prima facie case of a violation of fmla § 2614. It is uncontested that plaintiff took maternity leave pursuant to the fmla and was dismissed by defendant before returning from that leave. The burden then shifted to defendant to demonstrate that there was a nondiscriminatory reason for its actions. Morgan, supra at 1323. Defendant presented evidence of its adoption of a management restructuring plan under which plaintiffs position as director of placement and two other management positions were eliminated. Following this evidence, the burden reverted to plaintiff to establish a genuine issue of material fact regarding whether defendant’s stated reason for eliminating her position was “unworthy of belief.” Id. Plaintiff failed to carry this burden, and therefore summary disposition in favor of defendant was properly granted. Plaintiff claims that she was dismissed “as a result of her requesting and taking a medical leave.” However, plaintiff presented no evidence to contradict the affidavit of defendant’s human resources director, Vicky Hilliard, stating that from 1993 through 1998, seven of defendant’s employees took maternity leaves, and none of those employees were dismissed by defendant. Also, plaintiff offered no evidence to contradict Hilliard’s statement that from 1992 through 1998, “there have been ninety . . . employees who have taken fmla leaves” and “[n]one of these employees have lost their positions because of their leaves of absence.” Plaintiff offered no evidence to contradict Christensen’s statements that the corporate restructuring plan that resulted in the elimination of plaintiff’s position was proposed in October 1995, approximately two months before plaintiff requested maternity leave pursuant to the fmla. Furthermore, plaintiff admitted during her deposition that she had no evidence to contradict defendant’s assertion that her position was eliminated as part of the management restructuring plan, rather than in response to her decision to take maternity leave. Plaintiff’s theory that defendant dismissed her because she was on leave was based on conjecture. Thus, the lower court correctly concluded that plaintiff failed to show that genuine issues of material fact existed regarding whether defendant’s claim that plaintiff’s position was eliminated as part of a management restructuring plan was “unworthy of belief.” Id. Plaintiff argues that the McDonnell Douglas analysis is inapplicable in this case because plaintiff’s claim is based on a “failure to restore” theory pursuant to FMLA § 2614, and therefore, defendant’s intent in terminating her employment was irrelevant. Plaintiff’s argument appears to be based on Peters v Community Action Committee, Inc of Chambers-Tallapoosa-Coosa, 977 F Supp 1428 (MD Ala, 1997). In Peters, the plaintiff claimed that her employer “reassigned [her] from one position to another and [ ] ultimately constructively discharged” her for exercising her rights under the fmla. Id. at 1432. The court stated: To the extent that the sole question presented by the parties in an fmla case is whether an employee has received her entitlements under the fmla — for example, a 12-week leave or reinstatement — the employer’s intent may be immaterial. . . . However, once one of the parties raises the issue of whether a right, benefit, or position is one to which the employee would have been entitled had the employee not taken the leave or whether the employer has taken adverse action against the employee for having exercised an fmla right, the question of intent, may become relevant. [Id. at 1433.] The court found that because the plaintiff had alleged that the employer’s actions were discriminatory and retaliatory, she had “framed her claims as turning on her employer’s intent,” and the McDonnell Douglas analysis was applicable. Id. at 1433. Plaintiff in the present case contends that her claim relates solely to defendant’s failure to reinstate her after her leave as required under the fmla. Thus, plaintiff argues that under the holding of Peters, the McDonnell Douglas analysis is inapplicable and defendant’s reasons for failing to reinstate plaintiff should not have been considered by the trial court. We disagree. Defendant raised the issue whether plaintiff would have been entitled to her position had she not taken the leave, and, consequently, the question of intent is relevant, and the McDonnell Douglas analysis applies. Id. Further, in count H of her complaint, plaintiff alleged that “[defendant violated [the fmla] by terminating the Plaintiff, in whole or in part, as a result of her requesting and taking medical leave.” Thus, plaintiff’s claim was not merely that defendant failed to reinstate her as required by the fmla, but also that defendant had “taken adverse action against [her] for having exercised an FMLA right.” Id. During the hearing regarding the motion for summary disposition, plaintiff claimed that defendant dismissed her because “she was off pregnant.” Thus, because plaintiff framed her argument in terms of defendant’s intent with regard to the termination of her employment, the McDonnell Douglas analysis was appropriately applied by the trial court. The court properly granted defendant’s motion for summary disposition of plaintiff’s claim under the fmla. n Plaintiff next argues that her gender discrimination claim was improperly dismissed. We disagree. In count I of her complaint, plaintiff alleged that she was treated differently by defendant because of her gender, in violation of § 202 of the CRA, MCL 37.2202; MSA 3.548(202). In Feick v Monroe Co, 229 Mich App 335, 338; 582 NW2d 207 (1998), this Court stated: Absent direct evidence of discrimination, a plaintiff may establish a prima facie case of employment discrimination by showing (1) that the plaintiff was a member of a protected class, (2) that an adverse employment action was taken against the plaintiff, (3) that the plaintiff was qualified for the position, and (4) that the plaintiff was replaced by one who was not a member of the protected class. The Feick test was applied by the trial court in the present case. The court found that because “it is uncontroverted that the female plaintiff in this action was replaced by a woman, plaintiff has failed to create a material issue of fact as to the 4th element of the prima facie case.” On appeal, plaintiff claims that the trial court erred in requiring plaintiff to show that she was replaced by a person who is not a member of her protected class in order to establish a prima facie case of gender discrimination. We agree. Plaintiff conceded that she was “replaced” by a woman after being dismissed by defendant. If plaintiff’s only argument had been that she was replaced for discriminatory reasons, the trial court’s application of the test in Feick would have been appropriate. However, plaintiff did not present a “discriminatory replacement” argument. Instead, plaintiff argued that defendant acted discriminatorily by treating her differently than a similarly situated male employee. Therefore, the trial court erred in granting summary disposition of plaintiffs gender discrimination claim in favor of defendant without considering plaintiffs argument based on a “similarly situated” theory. However, this Court will not reverse when the trial court reaches the correct result regardless of the reasoning employed. Zimmerman v Owens, 221 Mich App 259, 264; 561 NW2d 475 (1997). Because plaintiff failed to establish that she was treated differently than a similarly situated male employee, summary disposition was properly granted in favor of defendant. Given plaintiffs argument that she was treated differently than a similarly situated male employee, Town v Michigan Bell Telephone Co, 455 Mich 688, 695; 568 NW2d 64 (1997) (opinion by Brickley, J.), articulates the appropriate test for establishment of a prima facie case of gender discrimination: The modified McDonnell Douglas prima facie approach requires an employee to show that the employee was (1) a member of a protected class, (2) subject to an adverse employment action, (3) qualified for the position, and that (4) others, similarly situated and outside the protected class, were unaffected by the employer’s adverse conduct. Plaintiff claims that Richard Tejchma was a similarly situated male employee who was unaffected by defendant’s adverse conduct. Tejchma began working for defendant as an industrial subcontract supervisor in approximately 1975. He has a bachelor’s degree in sociology. After working for defendant for approximately three years, Tejchma received his certification as a rehabilitation counselor, and defendant employed him as a vocational evaluator. Tejchma testified that as a vocational evaluator, he provided diagnostic aptitude testing and vocational testing to evaluate individuals with handicaps and develop rehabilitation plans for training or community employment. Tejchma testified that he was still working for defendant as a vocational evaluator, although the title of his position has changed several times over the years. As previously noted, Tejchma’s position of director of assessment was eliminated along with plaintiff’s position of director of

SUSAN F. JOHNSON, Plaintiff v. THE TRUSTEES OF DURHAM TECHNICAL COMMUNITY COLLEGE, Defendant No. COA99-676 (Filed 29 August 2000) 1. Employer and Employee— retaliatory discharge — failure to renew employment contract The failure to renew an employment contract qualifies as a retaliatory action in violation of the Retaliatory Employment Discrimination Act under N.C.G.S. § 95-240(2) because it constitutes an adverse employment action. 2. Employer and Employee— retaliatory discharge — employee filed workers’ compensation claim The trial court did not err by granting summary judgment in favor of defendant employer as to plaintiff employee’s claims that she was discharged by her employer in retaliation for filing a workers’ compensation claim, because: (1) the evidence does not suggest that defendant failed to renew plaintiff’s contract in order to forestall the filing of another workers’ compensation claim since plaintiff’s second injury was not work-related; and (2) defendant entered into three additional contracts with plaintiff after she filed a workers’ compensation claim, and defendant’s refusal to renew plaintiff’s contract was not close in time to her workers’ compensation claim. 3. Disabilities— qualified individual — teacher at a jail— wheelchair — banned from jail — anonymous allegations of illegal misconduct The trial court erred by directing verdict on claims under the Americans with Disabilities Act against plaintiff employee who sat in a wheelchair and taught literary skills to inmates at a jail because viewing the evidence in the light most favorable to plaintiff reveals that plaintiff was a qualified individual under 42 U.S.C. § 12111(9) to teach at the jail, even though plaintiff was banned from the jail after the program director confirmed anonymous allegations of plaintiff’s illegal conduct, since: (1) defendant decided not to renew plaintiff’s contract before the anonymous phone calls of plaintiff’s misconduct were received and before plaintiff was banned from the jail; and (2) an employer may not rely on evidence of employee misconduct which is acquired after the employment decision in question to defend the employment decision. 4. Disabilities— qualified individual — teacher at a jail— wheelchair — poor attendance The trial court erred by directing verdict on claims under the Americans with Disabilities Act against plaintiff employee who sat in a wheelchair and taught literary skills to inmates at a jail because viewing the evidence in the light most favorable to plaintiff reveals that plaintiff was a qualified individual under 42 U.S.C. § 12111(9) to teach at the jail, even though defendant alleges that plaintiff had poor attendance at her job, since: (1) plaintiff was able to teach three out of five employment periods without incident, and one employment period in which she missed only two weeks out of twelve weeks of classes; (2) it was only during one employment period that plaintiff missed a significant number of classes; (3) plaintiffs absences were due solely to complications related to her disability and did not establish a clear pattern of absenteeism; (4) following her significant period of absence during the third employment period, defendant did not express that the extended absence was disruptive or excessive and even offered her two additional periods of employment; and (5) plaintiffs employment relationship with defendant did not end solely because of excessive absenteeism. 5. Disabilities— teacher at a jail — wheelchair—no presumption of non-discrimination for employer Defendant employer was not entitled to a directed verdict on plaintiff employee’s claims under the Americans with Disabilities Act based on the presumption of non-discrimination that arises when the same person who hired plaintiff also fired her. Appeal by plaintiff from judgment entered 23 December 1997 by Judge Henry V. Barnette and judgment entered 18 December 1998 by Judge Narley L. Cashwell in Superior Court, Durham County. Heard in the Court of Appeals 14 March 2000. Glenn, Mills & Fisher, P.A., by Stewart W. Fisher and Caitlyn Fulghum, for plaintiff-appellant. Haywood, Denny & Miller, L.L.P., by George W. Miller, Jr. and George W. Miller, III, for defendant-appellee. Patterson, Harkavy & Lawrence, L.L.P., by Burton Craige, for the North Carolina Academy of Trial Lawyers and the American Civil Liberties Union of North Carolina Legal Foundation, amici curiae. TIMMONS-GOODSON, Judge. The present case arises out of Susan F. Johnson’s (“plaintiff’) charges of discrimination filed against Durham Technical Community College (“defendant” or “Durham Tech”) under the Retaliatory Employment Discrimination Act and the Americans with Disabilities Act. Plaintiff appeals adverse rulings that resulted in a denial of her claims. Plaintiff taught literacy skills to inmates at the Durham County Jail Annex. She obtained the job by signing a contract with Durham Tech as a part-time instructor of a basic skills course. Pursuant to the contract, plaintiff taught from November of 1993 until mid-February of 1994. Over a two-year period, plaintiff and defendant entered into seven more contracts, for employment periods which lasted for a term of one to three months, depending on the length of the literacy course. Plaintiff is unable to walk without crutches as a result of having contracted polio as a child. Prior to moving to North Carolina, she taught Latin in Troop County, Georgia. In 1986, plaintiff applied for and received permanent partial disability from her post as a teacher in Georgia and permanent total disability from the Federal Government. In order to teach her class at the jail annex, plaintiff drove to the jail in her own car, entered on crutches, transferred into a wheelchair she kept at the jail, and taught class from the wheelchair. On 8 June 1994, plaintiff fell from her crutches while opening a security door at the jail, breaking a vertebra in her spine. She filed for workers’ compensation benefits on 10 June 1994 and received payment for medical bills and temporary total disability. On 2 January 1995, plaintiff returned to the jail to teach under her fourth employment contract period. Following her fall, plaintiff used her wheelchair exclusively because walking was more difficult. From her home, plaintiff was lifted in her wheelchair onto a public transport van which drove her to the jail. She then rolled into the jail annex and taught her class from her wheelchair. In February of 1995, plaintiff fell in a bathtub at home and broke her leg. She returned to the jail approximately two weeks later and continued to teach from her wheelchair with her leg in a cast. Administrators at Durham Tech grew increasingly concerned about the possibility plaintiff would suffer another accident at the jail, exposing Durham Tech to liability. Additionally, the administrators were concerned about plaintiffs absences as a result of her injuries and her requirements of accommodations such as having guards at the jail assist her to open and close doors. On 16 June 1995, plaintiff met with Russ Conley (“Conley”), the Director of the Adult and Basic Skills program at Durham Tech. Conley proposed that plaintiff teach on campus rather than at the jail at the expiration of her contract. Conley stated that having plaintiff teach at the jail “could prove to be a liability for Durham Tech.” Conley discussed the possibility of plaintiff teaching students with disabilities and mental illnesses. Plaintiff refused the transfer, stating that she had no special education training. Conley informed plaintiff on 16 June 1995 that she would not be returning to the jail and that he had already hired someone to replace her. On 21 June and 24 June 1995, the Dean of Adult and Continuing Education at Durham Tech, Art Clark, received anonymous phone calls alleging that plaintiff used drugs, gave drugs to inmates, carried a loaded weapon, supplied inmates with bullets, and had sex with inmates. Larry Haverland (“Haverland”), Deputy Director for Inmate Programs, testified that he corroborated some of the anonymous charges against plaintiff on 23 June 1995. Haverland did not know who had conducted the informal investigation of the anonymous charges or whether that individual was reliable. The corroborated charges were that plaintiff had taken contraband into the jail in the form of “possibly lighters or matches or something” and that plaintiff had visited an inmate at another prison. Haverland testified that a teacher does not violate jail rules by visiting an inmate at another prison. Plaintiff was not asked to answer the charges of the anonymous caller until after she filed charges of discrimination against Durham Tech in the fall of 1995. On 26 June 1995, Conley approached plaintiff at the jail annex and informed her that her position would end on 28 June 1995 when her contract expired. Plaintiff was not offered another teaching contract with Durham Tech. During the week before trial, Durham Tech identified the anonymous caller as Cynthia Wilson (“Wilson”), a nursing aide who had worked in plaintiff’s home. At trial, plaintiff denied Wilson’s charges. Two nursing aides who assisted plaintiff at the same time as Wilson testified that they had never seen any signs of drug use or improper conduct by plaintiff. Plaintiff initiated charges of discrimination with the North Carolina Department of Labor under the Retaliatory Employment Discrimination Act and with the Equal Employment Opportunity Commission under the Americans with Disabilities Act. After exhausting her administrative remedies, plaintiff filed a complaint alleging that defendant had removed her from its employment in violation of state and federal law. On 23 December 1997, Judge Henry V. Barnette of the Superior Court, Durham County partially allowed defendant’s Motion for Summary Judgment, dismissing plaintiff’s claims brought pursuant to the North Carolina Retaliatory Employment Discrimination Act, but denying summary judgment as to plaintiff’s cause of action brought pursuant to the Americans with Disabilities Act. Specifically, Judge Barnette denied plaintiff’s Motion for Summary Judgment as to whether plaintiff was a “qualified individual with a disability” for purposes of the Americans with Disabilities Act. On 18 December 1998, Judge Narley L. Cashwell of the Superior Court, Durham County granted defendant’s Motion for Directed Verdict as to plaintiff’s claim under the Americans with Disabilities Act. Plaintiff appeals. On appeal, plaintiff argues that the trial court erred in: (I) granting defendant’s Motion for Summary Judgment as to plaintiff’s claims under the Retaliatory Employment Discrimination Act; and (II) directing a verdict against plaintiff as to her claims under the Americans with Disabilities Act. I. RETALIATORY DISCRIMINATION ACT CLAIM By her first assignment of error, plaintiff argues that the trial court erred in granting defendant’s Motion for Summary Judgment as to plaintiff’s claims under the Retaliatory Employment Discrimination Act. We cannot agree. Summary judgment is proper where there is no genuine issue as to any material fact. Alltop v. Penney Co., 10 N.C. App. 692, 179 S.E.2d 885 (1971). An issue is genuine where it is supported by substantial evidence. Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). A genuine issue of material fact is of such a nature as to affect the outcome of the action. Smith v. Smith, 65 N.C. App. 139, 308 S.E.2d 504 (1983). The moving party bears the burden of establishing the lack of a triable issue of fact. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425 (1970). The motion must be denied where the non-moving party shows an actual dispute as to one or more material issues. Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972). As a general principle, summary judgment is a drastic remedy which must be used cautiously so that no party is deprived of trial on a disputed factual issue. Billings v. Harris Co., 27 N.C. App. 689, 220 S.E.2d 361 (1975), aff’d, 290 N.C. 502, 226 S.E.2d 321 (1976). The North Carolina Retaliatory Employment Discrimination Act (“REDA”), enacted in 1992, prohibits discrimination against an employee who has filed a workers’ compensation claim. N.C. Gen. Stat. § 95-240, et. seq. (1999). In pertinent part, the Act provides: (a) No person shall discriminate or take any retaliatory action against an employee because the employee in good faith does or threatens to do any of the following: (1) File a claim or complaint, initiate any inquiry, investigation, inspection, proceeding or other action, or testify or provide information to any person with respect to any of the following: a. Chapter 97 of the General Statutes. N.C. Gen. Stat. § 95-241 (1999). REDA replaced North Carolina General Statutes section 97-6.1, the purpose of which was to promote an open environment in which employees could pursue remedies under the Workers’ Compensation Act without fear of retaliation from their employers. Abels v. Renfro Corp., 108 N.C. App. 135, 423 S.E.2d 479 (1992), aff’d in part, rev’d in part, 335 N.C. 209, 436 S.E.2d 822 (1993). The former law merely protected employees against discharge and demotion. N.C. Gen. Stat. § 97-6.1(a) (repealed 1992). By enacting REDA, however, the General Assembly expanded the definition of retaliation to include “the discharge, suspension, demotion, retaliatory relocation of an employee, or other adverse employment action taken against an employee in the terms, conditions, privileges, and benefits of employment.” N.C. Gen. Stat. § 95-240(2) (1999). In a claim brought pursuant to the former provision, section 97-6.1(a), this Court stated that an employee bears the burden of proof in retaliatory discharge actions. Morgan v. Musselwhite, 101 N.C. App. 390, 399 S.E.2d 151 (1991). “The statute does not prohibit all discharges of employees who are involved in a workers’ compensation claim, it only prohibits those discharges made because the employee exercises his compensation rights.” Id. at 393, 399 S.E.2d at 153 (citation omitted). Furthermore, our appellate courts indicated in applying the former provision that a plaintiff fails to make out a case of retaliatory action where there is no close temporal connection between the filing of the claim and the alleged retaliatory act. See Shaffner v. Westinghouse Electric Corp., 101 N.C. App. 213, 398 S.E.2d 657 (1990); Morgan, 101 N.C. App. 390, 399 S.E.2d 151. As a preliminary matter, we must address the issue of whether the failure to renew an employment contract may qualify as a retaliatory action in violation of REDA. As stated above, in enacting REDA, the General Assembly broadly defined retaliatory action as “the discharge, suspension, demotion, retaliatory relocation of an employee, or other adverse employment action N.C.G.S. § 95-240(2) (emphasis added). As the failure to renew an employee’s contract produces the adverse result of terminating her employment, the plain language of the statute suggests that non-renewal of an employment contract falls within the scope of REDA. Furthermore, while our appellate courts have not spoken on this issue, we find persuasive authority from other jurisdictions holding that the failure to renew an employment contract may constitute actionable conduct. See, e.g., Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 50 L. Ed. 2d 471 (1977); Perry v. Sinderman, 408 U.S. 593, 33 L. Ed. 2d 570 (1972); Kramer v. Logan County School District No. R-l, 157 F.3d 620 (8th Cir. 1998); Smith v. Borough of Wilkinsburg, 147 F.3d 272 (3d Cir. 1998); Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, reh’g denied, 660 F.2d 497 (5th Cir. 1981); Daly v. Exxon Corp., 63 Cal. Rptr. 2d 727 (Cal. Ct. App. 1997). We therefore hold that the failure to renew an employment contract constitutes an adverse employment action for purposes of REDA. We now address plaintiff’s argument that a genuine issue of material fact existed as to whether defendant took retaliatory action against her because she filed a workers’ compensation claim or threatened to do so. See N.C.G.S. § 95-241. In the present case, plaintiff filed a workers’ compensation claim on 10 June 1994 after she broke a vertebra in her spine while opening a security door at the jail annex. Defendant entered into three new contracts with plaintiff after she filed the claim. Plaintiffs final contract with Durham Tech expired on 28 June 1995, over a year after she filed for compensation. Plaintiff argues that she was terminated after a second injury similar to the employee in Abels, 335 N.C. 209, 436 S.E.2d 822, and that a discharge following a second injury is sufficient to show that an employee was discharged to prevent the filing of a workers’ compensation claim. However, plaintiffs second injury occurred in the home when she fell in a bathtub on 11 February 1995 and broke her leg. Durham Tech would not have anticipated a workers’ compensation claim based on plaintiff’s second injury as it was not work related. In contrast to Abel, the circumstantial evidence in the case sub judice does not suggest that defendant failed to renew plaintiff’s contract in order to forestall the filing of a workers’ compensation claim. Defendant entered into three new contracts with plaintiff after she filed a workers’ compensation claim, and defendant’s refusal to renew plaintiff’s contract was not closely temporally related to her workers’ compensation claim in that it took place over a year after she filed for compensation. See Shaffner, 101 N.C. App. 213, 398 S.E.2d 657. We conclude that there was no genuine issue of material fact as to whether defendant took retaliatory action against plaintiff because she filed a workers’ compensation claim or threatened to file one. As such, we hold that the trial court did not err in granting defendant’s Motion for Summary Judgment on plaintiff’s claims under the REDA. II. AMERICANS WITH DISABILITIES ACT CLAIM By her second assignment of error, plaintiff argues that the trial court erred in directing a verdict against her on her claims under the Americans with Disabilities Act. We agree. In deciding whether to direct a verdict at the close of all of the evidence, “the trial court must determine whether the evidence, when considered in the light most favorable to the nonmovant, is sufficient to take the case to the jury.” Southern Bell Telephone and Telegraph Co. v. West, 100 N.C. App. 668, 670, 397 S.E.2d 765, 766 (1990), (citations omitted), aff’d, 328 N.C. 566, 402 S.E.2d 409 (1991) (citations omitted). If there is more than a scintilla to support a plaintiff’s case, the motion must be denied. Edwards v. West, 128 N.C. App. 570, 495 S.E.2d 920, cert. denied, 348 N.C. 282, 501 S.E.2d 918 (1998). “Where the question of granting a directed verdict is a close one, the better practice is for the trial judge to reserve his decision on the motion and submit the case to the jury.” Id. at 573, 495 S.E.2d at 923 (citation omitted). The Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. (1994), provides in pertinent part: No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a) (1994). To prevail on an ADA claim, the plaintiff must prove that: (1) she has a disability as defined by the ADA; (2) she is qualified for the job; and (3) she was unlawfully discriminated against by an employer because of her disability. Martinson v. Kinney Shoe Corp., 104 F.3d 683 (4th Cir. 1997). Under the ADA, the term “disability” is defined as “a physical. . . impairment that substantially limits one or more of the major life activities of such individual[.]” 42 U.S.C. § 12102(2)(A)

KERNS v DURA MECHANICAL COMPONENTS, INC (ON REMAND) Docket No. 198393. Submitted December 10, 1999, at Grand Rapids. Decided July 21, 2000, at 9:00 A.M. Leave to appeal sought. Robert H. Kerns brought an action in the Antrim Circuit Court against Dura Mechanical Components, Inc., alleging that the defendant terminated his employment in violation of, among other things, the Michigan Handicappers’ Civil Rights Act (i-icra), now known as the Persons with Disabilities Civil Rights Act (pwdcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq., and the age discrimination prohibition of the Civil Rights Act (CRA), MCL 37.2101 et seq.; MSA 3.548(101) et seq. The court, Thomas G. Power, J., summarily dismissed the handicap discrimination claim, ruling that in light of the plaintiff’s representations of total and permanent disability in support of a successful claim for social security disability benefits, judicial estoppel precluded the handicap discrimination claim. The court also summarily dismissed the age discrimination claim, ruling that the plaintiff failed to establish that an issue of fact existed concerning whether the defendant’s proffered nondiscriminatoiy reasons for termination were mere pretext for discrimination. The Court of Appeals, Griffin, P.J., and Wahls and Gribbs, JJ., in an unpublished opinion per curiam, issued December 5, 1997 (Docket No. 198393), affirmed, holding that judicial estoppel precluded both claims. The Supreme Court, in lieu of granting leave to appeal, remanded the case to the Court of Appeals for reconsideration in light of Tranker v Figgie Int’l, Inc (On Remand), 231 Mich App 115 (1998), and Cleveland v Policy Management Systems Corp, 526 US 795 (1999). 461 Mich 905 (1999). On remand, the Court of Appeals held: 1. As decided in Tranker with respect to handicap discrimination claims under the hora and in Cleveland with respect to handicap discrimination claims under the Americans with Disabilities Act (ada), 42 USC 12101 et seq., the pursuit and receipt of social security disability benefits no longer automatically gives rise to judicial estoppel so as to bar claims under the hcra or the ada. Nevertheless, summary disposition based on judicial estoppel will be upheld on appeal, without need of a remand, where, as in this case, the inconsistency between statements of total disability in support of the claim for social security disability benefits and statements of ability to perform essential job functions in support of the claim of handicap discrimination cannot be reconciled in a way that would enable a reasonable juror to conclude that, notwithstanding the earlier statements of disability, the claimant could perform the essential functions of the job, with or without reasonable accommodation. An irreconcilable inconsistency exists between the plaintiff’s earlier statements that his job required standing and walking for long periods, but that his physical condition was such that he could not walk on a hard surface and had very limited ability to walk, and his later statements that he could perform the essential functions of his job. By the plaintiffs own admission the job could not be performed unless the person doing the work could stand and walk for long periods. None of the workplace accommodations suggested by the plaintiff were of the reasonable sort required by the hcra. 2. The plaintiff cannot establish a prima facie case of age-related employment discrimination under the cra in light of his inability to provide evidence that he was qualified for the job. Affirmed. Smolensk, X, dissenting, stated that an employment discrimination claim under the pwdcra should not be summarily dismissed on the basis of judicial estoppel relating to an earlier statement of total disability made in the course of seeking social security disability benefits where the claimant offers a sufficient explanation for the inconsistency between such statement and a statement of ability to perform the job made in pursuing the employment discrimination claim under the pwdcra. In this case, the plaintiff provided a sufficient explanation by arguing that reasonable workplace accommodation is not considered in determining eligibility for social security disability benefits, but is considered for purposes of the pwdcra. The grant of summary disposition should be reversed and the case should be remanded for further proceedings because the plaintiff established prima facie cases of handicap discrimination and age discrimination. Civil Rights — Persons with Disabilities — Employment Discrimination — Social Security Disability. The pursuit and receipt of social security disability benefits does not automatically give rise to judicial estoppel to preclude a later claim of employment discrimination under the Handicappers’ Civil Rights Act, now known as the Persons with Disabilities Civil Rights Act; judicial estoppel arises only where the inconsistency between the earlier statement of total disability and the later statement of ability to perform the job sought cannot be reconciled in a way that would enable a reasonable juror to conclude that the claimant could perform the essential functions of the job, with or without accomodation (MCL 37.1101 et seq:, MSA 3.550[101] et seq.). Bott & Spencer, P.C. (by Timothy J. Bott), for the plaintiff. Dickinson, Wright, Moon, Van Dusen & Freeman (by Timothy H. Howlett and David Deromidi), for the defendant. ON REMAND Before: Griffin, P.J., and Gribbs and Smolensk, JJ. On remand, Judge Smolensk has been substituted for Judge Wahls. Griffin, P.J. This case is on remand to us from the Michigan Supreme Court, 461 Mich 905 (1999), for reconsideration in light of Tranker v Figgie Int'l, Inc (On Remand), 231 Mich App 115; 585 NW2d 337 (1998) (Tranker II), and Cleveland v Policy Management Systems Corp, 526 US 795; 119 S Ct 1597; 143 L Ed 2d 966 (1999). We affirm. i Plaintiff Robert Kerns brought an action in the Antrim Circuit Court against defendant Dura Mechanical Components, Inc., alleging defendant violated an employment contract, the Michigan Handicappers’ Civil Rights Act (HCRA) (now known as the Persons with Disabilities Civil Rights Act), MCL 37.1101 et seq.-, MSA 3.550(101) et seq., and the Civil Rights Act, MCL 37.2101 et seq.-, MSA 3.548(101) et seq., when it terminated his employment. In our previous opinion in this matter, Kerns v Dura Mechanical Compo nents, Inc, unpublished opinion per curiam, issued December 5, 1997 (Docket No. 198393), we affirmed the trial court’s order granting defendant’s motion for summary disposition with regard to plaintiff’s wrongful discharge, handicapper discrimination, and age discrimination claims. In affirming dismissal of the latter two claims, we relied on the doctrine of judicial estoppel espoused in Tranker v Figgie Int'l, Inc, 221 Mich App 7; 561 NW2d 397 (1997), nullified 456 Mich 931 (1998) (Tranker I), holding plaintiff’s successful representations to the Social Security Administration that he was totally and permanently disabled precluded his claims in the present lawsuit under the HCRA and the Civil Rights Act. After our previous decision, our Supreme Court remanded Tranker I to this Court for reconsideration in light of several federal circuit court decisions that allowed claims under the Americans with Disabilities Act (ADA) even though the plaintiffs therein had previously represented a total disability to the Social Security Administration. 456 Mich 934 (1998). On remand, Tranker II, supra at 121-123, our Court vacated its prior ruling that judicial estoppel automatically bars a subsequent handicap discrimination claim, holding in pertinent part: In our previous opinion we . . . held that the doctrine of judicial estoppel barred plaintiff’s handicap discrimination claim. However, upon further review, we now disavow that position. Like the ADA, the . . . HCRA . . . prohibits discrimination, including in hiring, firing, and advancement. MCL 37.1202; MSA 3.550(202). After its 1990 amendments, it also requires that reasonable accommodations be made to assist the handicapped in performing duties of their employment. . . . [T]he receipt of social security disability benefits should not bar a subsequent claim under the hcra for the same reasons that it does not bar a subsequent claim under the ADA. The two acts are designed for different purposes and utilize different standards, and requiring a plaintiff to choose between the acts is unreasonable and illogical. Moreover, we agree that the social security definition of “disability” does not require a finding that the individual cannot perform any job under any circumstance. . . . The SSA does not take into consideration that a disabled individual may be able to perform a job with reasonable accommodations. Therefore, it is not inconsistent that a plaintiff could be disabled under the SSA and still be qualified to perform the duties of his job or a job he is seeking with reasonable accommodation under the HCRA. For that reason, we also agree that judicial estoppel should not bar a subsequent handicapper claim. . . . We note that although we have determined that judicial estoppel does not operate to automatically bar a disability benefit recipient’s handicap discrimination claim, statements made by the plaintiff in his prior application for disability benefits may weigh against him in his subsequent handicap discrimination claim. “The conclusion we reach today does not mean that claimants’ statements in support of disability claims are never relevant in ADA suits. For example, ADA plaintiffs who in support of claims for disability benefits tell the Social Security Administration they cannot perform the essential functions of a job even with accommodation could well be barred from asserting, for ADA purposes, that accommodation would have allowed them to perform that same job.” [Swanks (v Washington Metropolitan Area Transit Authority, 325 US App DC 238; 116 F3d 582 [1997]), supra at 243.] More recently, in Cleveland v Policy Management Systems Corp, supra, the United States Supreme Court held the pursuit and receipt of social security disability insurance benefits neither automatically estops the recipient from pursuing an ADA claim nor erects a strong presumption against the recipient’s success under the ADA. However, the Cleveland Court, supra at 806-807, further held that to survive a defendant’s motion for summary disposition, [a]n ADA plaintiff cannot simply ignore the apparent contradiction that arises out of the earlier ssdi total disability claim. Rather, she must proffer a sufficient explanation. . . . . . . When faced with a plaintiff’s previous sworn statement asserting “total disability” or the like, the court should require an explanation of any apparent inconsistency with the necessary elements of an ada claim. To defeat summary judgment, that explanation must be sufficient to warrant a reasonable juror’s concluding that, assuming the truth of, or the plaintiffs good faith belief in, the earlier statement, the plaintiff could nonetheless “perform the essential functions” of her job, with or without “reasonable accommodation.” The Cleveland Court, supra at 807, found that, under the particular circumstances of that case, the plaintiff had advanced a sufficient explanation for her contradictory representations to warrant remanding the case to the trial court for further proceedings on the issue: In her brief to this Court, Cleveland explains the discrepancy between her SSDI statements that she was “totally disabled” and her ADA claim that she could “perform the essential functions” of her job. The first statements, she says, “were made in a forum which does not consider the effect that reasonable workplace accommodations would have on the ability to work.” Brief for Petitioner 43. Moreover, she claims the ssdi statements were “accurate statements” if examined “in the time period in which they were made.” Ibid. The parties should have the opportunity in the trial court to present, or to contest, these explanations, in sworn form where appropriate. Accordingly, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. Thus, pursuant to Tranker II and Cleveland, judicial estoppel no longer automatically precludes plaintiffs discrimination claims asserted in this case. Moreover, as this Court has already acknowledged in Hall v McRea Corp, 238 Mich App 361, 369; 605 NW2d 354 (1999), “[t]he Cleveland requirement of an explanation from the plaintiff is fully consistent with this Court’s holding in Tranker II.” In some cases, a remand to the trial court to afford plaintiff the opportunity to reconcile his representation of total disability (for social security purposes) with his hcra and Civil Rights Act discrimination claims would be the appropriate remedy. However, we conclude neither Tranker II nor Cleveland mandates a remand for further explanation in every instance in which inconsistent claims regarding disability have been alleged. As two post-Cleveland federal decisions have expressly recognized, summary disposition based on estoppel, without the necessity for remand, is warranted under certain circumstances. As explained in Motley v New Jersey State Police, 196 F3d 160, 164, 167 (CA 3, 1999): The Supreme Court [in Cleveland] acknowledged, as do we, that a statement of total disability when applying for disability benefits may be a “context-related legal conclusion, namely, T am disabled for purposes of the [disability act].’ ” Id. [Cleveland] at [119 S Ct] 1601. . . . The Court also acknowledged that certain statements made during disability hearings may lead to generally applicable factual conclusions. Where factual inconsistencies between claims exist, as opposed to context-specific legal conclusions, the Court held that the law remains “where [it] found it.” See Cleveland, 119 S Ct at 1601-02 .... * -i= * As the Supreme Court made clear in Cleveland, 119 S Ct at 1603-04, the mere fact that the statutory standards differ in some aspects does not mean that a prior assertion of permanent and total disability can never preclude a party from bringing a claim under the ADA. Cleveland holds simply that where context-related legal conclusions are involved, courts must not apply presumptions automatically without first considering whether the ADA plaintiff can reconcile the two apparently inconsistent statutory claims. There may be cases where, looking at the previous facts and statements by a party, the assertions are such that the party cannot prove that he was a qualified individual because his previous statements take the position that he could not perform the essential functions of the job, with or without accommodation. [Emphasis added.] On the basis of the existing record before it, the Motley Court, supra at 166-167, concluded that the plaintiff would not be able to satisfactorily reconcile the factual inconsistencies between his pension disability and ADA claims and, therefore, a remand was not required pursuant to Cleveland: [S]imply averring that the statutory schemes differ is not enough to survive summary judgment in light of Cleveland. An ADA plaintiff must offer a more substantial explanation to explain the divergent positions taken, or else summary judgment could never be granted. Motley has failed to bring additional reasons for his conflicting answers to our attention. If anything, looking to the different statutory schemes in this particular case convinces us that Motley’s claims are, in fact, unreconcilable. * * * Motley, relying on several specific and severe physical injuries, asserted that he was “permanently and totally disabled.” This was not a mere blanket statement of complete disability checked on a box in order to obtain pension benefits. Rather, the assertion was supported by Motley’s additional statements concerning the type and extent of his injuries. Furthermore, the medical board diagnosis, uncontested by Motley, also concluded that Motley was permanently incapacitated for police officer duties. On their face, these assertions are patently inconsistent with his present claims that he was a “qualified individual” under the ADA. Motley asserted that he was totally disabled so that he could receive special retirement benefits. After his retirement, he brought this claim, which necessarily relies on the fact that he was not totally disabled. Examining all the facts, we cannot say that the District Court erred when it concluded that the ada case brought by Motley was inconsistent with his earlier statements regarding his disability. Thus, under Cleveland, the entry of summary judgment against Motley was proper. Likewise, in Mitchell v Washingtonville Central School Dist, 190 F3d 1 (CA 2, 1999), the United States Court of Appeals concluded that summary judgment was appropriate, and a remand for further proceedings was not warranted. The Mitchell Court held that the plaintiff custodian’s previous assertions that he could no longer walk or stand (made as part of his successful worker’s compensation and social security disability compensation claims) were purely factual conclusions (not “context-related legal conclusion[s],” Cleveland, supra at 802) that prevented the plaintiff from asserting a contrary factual position in his ADA claim: Mitchell [plaintiff] argues that ... in its application of judicial estoppel the district court effectively imposed a per se rule preventing an SSDI recipient who claims an inability to work from later asserting under the ada that he or she is able to work. We disagree. The district court did not hold that Mitchell was estopped from arguing that he was able to work with a reasonable accommodation once he asserted, for purposes of obtaining workers’ compensation and social security benefits, that he was too disabled to work. On the contrary, the lower court specifically declined to apply any such categorical rule and held Mitchell was estopped from asserting, as a factual matter, that he was capable of performing work in other than a sedentary position. Such an application of judicial estoppel is consistent with Cleveland. The Supreme Court emphasized that the case before it did not “involve directly conflicting statements about purely factual matters, such as ... T can/cannot raise my arm above my head[,]’ ” and indeed that the decision “leaves the law related to . . . purely factual. . conflict[s] where [the Court] found it.” Cleveland, [526] US at [802]; 119 S Ct at 1601-02. Therefore, if the requirements for judicial estoppel are otherwise met, Mitchell may be prevented from claiming, as a factual matter, that he could stand and walk at work on the basis of prior factual assertions to the contrary. Turning to those requirements, we conclude that the district court correctly held that Mitchell was estopped from asserting in the present action that he was capable of performing work that required him to stand or walk. . . . Mitchell’s prior statements, made in 1994, 1995 and 1996 to the Workers’ Compensation Board and the Social Security Administration, that he was incapable of standing for any length of time or of walking and that he required work he could perform seated, clearly contradict Mitchell’s position in this litigation that as of late 1994 he was able to stand and walk for a substantial portion of the work day. . . . Since Mitchell’s earlier assertions as to his inability to walk or stand were accepted by these prior administrative tribunals, resulting in a determination in his favor, judicial estoppel prevents Mitchell from advancing, for purposes of this litigation, the contrary position. * * :|: We also agree with the district court that, once estopped from arguing he could walk and stand and therefore bound to the assertion that he could only do sedentary work, Mitchell could not show that he could perform the essential functions of Head Custodian

PETZOLD v BORMAN’S, INC Docket No. 211567. Submitted May 2, 2000, at Detroit. Decided July 18, 2000, at 9:05 A.M. Karl Petzold brought an action in the Wayne Circuit Court against Borman’s, Inc., and Gary Chapell, alleging that the defendants violated the Handicappers’ Civil Rights Act (hcra), now known as the Persons with Disabilities Civil Rights Act, MCL 37.1101 et seq.-, MSA 3.550(101) et seq., when they terminated his employment as a Farmer Jack’s grocery store courtesy clerk or bagger and when they failed to make workplace accommodations for his Tourette Syndrome (ts), a neurological disorder that causes the plaintiff to involuntarily utter obscenities and racial epithets in the presence of customers, children, and fellow employees. The defendants moved for summary disposition, which the court, Michael J. Callahan, J., denied. The defendants appealed by leave granted. The Court of Appeals held: 1. The trial court erred in denying summary disposition of the discrimination claim. The plaintiff failed to establish a prima facie case of employment discrimination under the hcra because the plaintiff’s ts is not unrelated to his ability to perform the duties of his job or position. The plaintiff’s offensive language made him unfit for his job. Furthermore, a disabled employee may be discharged for misconduct, even where the misconduct is a manifestation of the employee's disability. The plaintiff’s offensive language violated Farmer Jack work rules against abusive language or discourteous conduct toward customers, supervisors, or fellow employees. 2. The trial court erred in denying summary disposition of the claim of failure to make workplace accommodations. In order to bring a cause of action under the hcra for failure to make accommodations, a plaintiff must have advised the defendant in writing of the need for accommodation. MCL 37.1210(18); MSA 3.550(210)(18). The plaintiff in this case gave no such notice. Reversed. 1. Civil Rights — Persons with Disabilities — Employment Discrimination. A prima facie case of discrimination under the Handicappers’ Civil Rights Act, now known as the Persons with Disabilities Civil Rights Act, is established where the plaintiff is “handicapped” as defined in the statute, the handicap is unrelated to the plaintiffs ability to perform the duties of a particular job or position or is unrelated to the plaintiffs qualifications for employment or promotion, and the plaintiff has been discriminated against in one of the ways set forth in the statute (MCL 37.1103[e][i][A], 37.1202[1]; MSA 3.550[103][e][i][A], 3.550[202][1]). 2. Civil Rights — Persons with Disabilities — Employment Discrimination — Termination — Misconduct. A disabled employee’s discharge for misconduct does not constitute discrimination under the Handicappers’ Civil Rights Act, now known as the Persons with Disabilities Civil Rights Act, even where the misconduct is a manifestation of the employee’s disability. Cutler & Associates, P.L.L.C. (by Michael H. Cutler), for the plaintiff. Brown Schwartz Patterson & Ankers (by Malcolm D. Brown and Craig S. Schwartz), for the defendants. Before: McDonald, P.J., and Gage and Talbot, JJ. McDonald, P.J. Defendants, Borman’s, Inc., doing business as Farmer Jack, and Gary Chapell, appeal by leave granted the trial court’s denial of their motion for summary disposition in this action under the Handicappers’ Civil Rights Act (HCRA), now known as the Persons with Disabilities Civil Rights Act, MCL 37.1101 et seq.-, MSA 3.550(101) et seq. We reverse. The relevant facts in this case are largely undisputed. Plaintiff, Karl Petzold, suffers from a rare neurological disorder known as Tourette Syndrome (TS). He has had TS since he was seven years old. In order to understand the events in this case, it is first necessary to have a basic understanding of plaintiff’s disorder. The symptoms of TS include motor and vocal tics. Vocal tics axe “the utterance of noises, words, and sometimes unacceptable language, which is called coprolalia.” Levi-Pearl & Cohen, Understanding Coprolalia, (Tourette Syndrome Assoc, Inc, 1994). Plaintiff has coprolalia. The pamphlet in the record entitled Understanding Coprolalia includes the following information: What is Coprolalia? Coprolalia is a medical term used to describe one of the most baffling and socially stigmatizing symptoms of Tourette Syndrome — the involuntary outburst of obscene words or socially inappropriate and derogatory remarks, which may include ethnic or religious slurs. Other examples may include references to genitals, excrement and sexual acts. Although coprolalia is the most well known symptom of ts, it occurs in only a minority of ts patients. * * * How is Coprolalia Manifested? While obscenities and profanities may be common in everyday conversation in our culture, coprolalia is different from simply swearing or using bad language. These vocal tics usually are not uttered within social or emotional contexts, and are often spoken or repeated compulsively in a louder tone or different cadence or pitch than normal conversational speech. Particularly embarrassing for some individuals with coprolalia are involuntary outbursts within social contexts, such as racial or ethnic slurs in the company of the very people who would be most offended by such remarks. A minority of people with coprolalia have this particular problem. [Emphasis in original.] At his deposition, plaintiff explained his coprolalia causes him to say the obscene terms “f . . . ” and “b . . . . ” and racial epithets, especially “n......” Plaintiff also utters shortened forms of these words, for example, “nig.” Plaintiff compared his coprolalia to a sneeze in that he can feel it coming on, but is unable to control it, even with medication. The coprolalia causes him to utter obscenities and racial epithets regularly, usually when he is talking to someone or under stress. Plaintiff explained that his coprolalia would most likely cause him to use the word “n.....,” often accompanied by the word “f . . . ,” when he is with persons who are African-American. Similarly, plaintiff testified that he would be more likely to say the word “b . . . . ” if he were talking with a woman. Plaintiff began working at defendant Farmer Jack’s grocery store located in the city of Hamtramck in July 1995. He was hired for a part-time position that is alternatively known as “courtesy clerk” or “bagger.” His job duties included bagging groceries for customers at the checkout counter, retrieving shopping carts from the parking lot, changing the bags in the bottle-return machines, and sometimes assisting elderly customers by taking their groceries to their cars. These tasks placed him in continual contact with customers and other employees, the majority of whom are African-American and many of whom are female. At his deposition, plaintiff admitted that his coprolalia caused him to utter obscene terms and racial epithets in the presence of customers, children, and other employees on a daily basis. Plaintiff remained employed at Farmer Jack for approximately ten months. However, an incident occurred in May 1996 that led to the termination of plaintiff’s employment. One evening plaintiff was bagging groceries at Loretta Wilkins’ register. Wilkins’ affidavit states there was a line of customers at her register, including a woman and several young men who were African-American. Plaintiff began loudly stating “n....., n . . When Wilkins called his name twice and asked him not to say that, plaintiff acted confused and started putting orders in the wrong shopping baskets. When a woman asked where her meat was, the young men waiting in the line laughed. According to Wilkins, plaintiff then “blurted out loudly, f. . . you, f. . . you, n....., n......” The young men were “outraged” and asked Wilkins what plaintiff said. Although Wilkins explained that plaintiff just talked to himself all the time and did not mean any harm, the young men continued to be angry and Wilkins was “worried that they might retaliate against [plaintiff] after he left work that night.” The store manager, David Flis, testified at his deposition that an African-American male customer complained to Flis regarding plaintiff’s language that evening. The man was “irate” and reported that plaintiff was “saying the N-word and he was swearing.” The man also told Flis that he would handle the problem with plaintiff himself if Flis did not handle it. Flis called plaintiff into his office and asked him what he had said. Plaintiff admitted to Flis that he had said the words “f . . . ” and “n.....,” but Flis could not remember the exact order or how many times plaintiff had used each word. Plaintiff testified candidly at his deposition that on the night the customer complained, he was loudly saying “f . . . , f . . . , n....., n......” Plaintiff did not recall saying “f . . . you.” Plaintiff again explained that his uttering of the offensive words was “part of [his] disability,” that he was not doing it intentionally or “trying to deliberately upset people.” Plaintiff was sent home before his shift ended on the night of the incident, which turned out to be his last night of employment. On another date, plaintiff was given a “Corrective Action Notice” that indicated he was “suspended pending advisability of discharge” because of his “failure to perform job functions per company policies [and] procedures” on the night in question. Plaintiff filed a grievance with his union, United Food & Commercial Workers Union Local No. 876, claiming he was unjustly suspended, but the union’s executive board determined his grievance lacked merit and would not be taken to arbitration. Plaintiff’s employment was eventually officially terminated. A letter dated June 28, 1996, from Farmer Jack’s director of personnel indicated that “courteous and proper treatment” of customers and co-workers were essential job functions that plaintiff was unable to fulfill. The letter also stated that plaintiff’s “inappropriate (if not completely offensive) outbursts and comments” could not be tolerated and that “regardless of whether these outbursts and comments are voluntary or involuntary we still cannot permit our customers, employees or vendors to be subjected to them.” On January 23, 1997, plaintiff filed his complaint in this case. Plaintiff alleged that his Tourette Syndrome was a handicap under the HCRA, that his ts did not affect his ability to perform the duties and requirements of his job, and that defendants terminated his employment because of his ts in violation of the hcra. Plaintiff further alleged that defendants failed to accommodate his handicap as required by the HCRA. Defendants moved for summary disposition on January 23, 1998, under MCR 2.116(C)(10), arguing that plaintiff did not qualify as a handicapper under the hcra because his ts is not unrelated to his ability to perform the job. Defendants also argued that plaintiff’s claim for failure to accommodate should be dismissed because plaintiff admitted that he never made a written request for accommodation as required by the hcra. Following a hearing, the trial court denied defendants’ motion for summary disposition. Defendants sought interlocutory leave to appeal in this Court, which was granted. Defendants argue the trial court erred in denying their motion for summary disposition. We agree. We review a trial court’s ruling on a motion for summary disposition de novo. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). When a motion under MCR 2.116(C)(10) is made, the court considers the affidavits, pleadings, depositions, admissions, and other documentary evidence submitted or filed in the action to determine whether a genuine issue of any material fact exists to warrant a trial. Id. The hcra protects individuals from discrimination based on their handicapped status. Chmielewski v Xermac, Inc, 457 Mich 593, 601; 580 NW2d 817 (1998). The HCRA “prohibits discrimination, including in hiring, firing, and advancement.” Tranker v Figgie Int’l, Inc, 231 Mich App 115, 121; 585 NW2d 337 (1998); MCL 37.1202; MSA 3.550(202). “The purpose of the act is to mandate ‘the employment of the handicapped to the fullest extent reasonably possible.’ ” Chmielewski, supra at 601, quoting Allen v Southeastern Michigan Transportation Authority, 132 Mich App 533, 537-538; 349 NW2d 204 (1984). A prima facie case of discrimination under the HCRA is established where (1) the plaintiff is “handicapped” as defined in the statute, (2) the handicap is unrelated to the plaintiff’s ability to perform the duties of a particular job or position or is unrelated to the plaintiff’s qualifications for employment or promotion, and (3) the plaintiff has been discriminated against in one of the ways set forth in the statute. Chmielewski, supra at 602; Collins v Blue Cross Blue Shield of Michigan, 228 Mich App 560, 568; 579 NW2d 435 (1998); MCL 37.1202(1); MSA 3.550(202)(1), MCL 37.1103(e)(i)(A); MSA 3.550(103)(e)(i)(A). Defendants argue that plaintiff failed to establish a prima facie case because he has not demonstrated that his TS is unrelated to his ability to perform his job. We agree. Plaintiff’s offensive language, which he admitted using on a daily basis in the presence of customers, children, and other employees, made him unfit for his job as a bagger as a matter of law. In reaching this holding, we emphasize that there certainly are jobs that persons with TS and coprolalia could perform. However, plaintiffs coprolalia renders him completely unqualified to perform this particular job, which required continual contact with members of the general public. We find that it would be ridiculous to expect a business such as defendant Farmer Jack to tolerate this type of language in the presence of its customers, even though we understand that because of plaintiffs condition, his utterance of obscenities and racial epithets is involuntary. Defendants further argue the trial court erred in concluding that Farmer Jack’s uniform work rules, which prohibit “abusive language to any employee, supervisor or customer” and “discourtesy towards customers, supervisors, or fellow employees” were not determinative of this case. We agree. In Collins, supra, this Court held that the defendant was entitled to terminate the plaintiff’s employment because the plaintiff’s psychological disorder caused her to express homicidal ideation regarding her immediate supervisor to a psychiatrist assigned to evaluate her disability claim. Collins, supra at 563-564, 568-569. This Court held that “a disabled employee may be discharged for misconduct, even where the misconduct is a manifestation of the employee’s disability.” Id. at 569. The trial court incorrectly limited Collins, supra, to its facts involving homicidal ideation. We agree with defendants that the holding of Collins is applicable to this case. In the instant case, plaintiff’s TS caused him to utter offensive language in the presence of customers and other employees. This constituted misconduct, especially considering defendant Farmer Jack’s uniform work rules that prohibit “abusive language to any employee, supervisor or customer” and “discourtesy towards customers, supervisors, or fellow employees.” Plaintiff has presented no evidence that he was terminated because of his disability, rather than his misconduct. Indeed, plaintiff admitted that he did not suffer discrimination at his job until he was fired after Farmer Jack received customer and employee complaints. Accordingly, the trial court should have granted summary disposition in favor of defendants with regard to plaintiffs claim under the HCRA. Defendants next argue that they were entitled to summary disposition of plaintiffs claim that defendants failed to accommodate his handicap, as required by the statute. The hcra requires an employer to take reasonable steps to accommodate a handicapped employee’s disability. MCL 37.1102(2); MSA 3.550(102)(2); Rourk v Oakwood Hosp Corp, 458 Mich 25, 29; 580 NW2d 397 (1998). In order to bring a cause of action under the statute for failure to accommodate in employment, the employee must advise the employer in writing of the need for accommodation. Sanchez v Lagoudakis (After Remand), 458 Mich 704, 724, n 25; 581 NW2d 257 (1998). The statute provides in relevant part: A handicapper may allege a violation against a person regarding a failure to accommodate under this article only if the handicapper notifies the person in writing of the need for accommodation within 182 days after the date the handicapper knew or reasonably should have known that an accommodation was needed. [MCL 37.1210(18); MSA 3.550(210)(18) (emphasis added).][] In this case, it is undisputed that at no time did plaintiff make a written request for accommodation. In his deposition, plaintiff stated that his only request for accommodation was verbal. Plaintiff does not address this issue on appeal. We conclude that the trial court erred in denying defendants’ motion for summary disposition of the issue of defendants’ failure to make reasonable accommodations. Reversed. Consistent with the parties, we will refer to defendant Borman’s, Inc., as “Farmer Jack” throughout this opinion. This pamphlet and other information is available on the website maintained by the Tourette Syndrome Association, Inc. <http://tsa.mgh.harvard.edu/> (visited July 3, 2000). There are inconsistencies in the record regarding the specific date of the incident. The statute now uses the term “person with a disability” instead of “handicapper.”