NORRIS v. STATE FARM FIRE AND CASUALTY COMPANY

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Court of Appeals of Michigan.

Gail NORRIS, Plaintiff-Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY, State Farm Annuity and Life Insurance Company, State Farm General Insurance Company, State Farm Life Insurance Company, State Farm Mutual Insurance Company, and Martha J. Piney, Defendants-Appellees.

Docket No. 195422.

Decided: April 10, 1998

Before CORRIGAN, C.J., and RICHARD ALLEN GRIFFIN and HOEKSTRA, JJ. Powell & Gerisch by Jonathan P. Gerisch, Ann Arbor, for Plaintiff-Appellant. Pepper, Hamilton & Scheetz by Ribert C. Ludolph and Judith E. Caliman, Detroit, for State Farm Fire and Casualty Company, State Farm Annuity and Life Insurance Company, State Farm General Insurance Company, State Farm Life Insurance Company, and State Farm Mutual Insurance Company. Sullivan, Ward, Bone, Tyler & Asher, P.C. by A. Stuart Tompkins and Sheri B. Cataldo, Southfield, for Martha J. Piney.

Plaintiff appeals as of right an order granting summary disposition in favor of defendants regarding plaintiff's claims arising out of her discharge from employment.   We reverse in part and affirm in part with regard to defendant Martha J. Piney and affirm with regard to defendants State Farm Fire and Casualty Company, State Farm Annuity and Life Insurance Company, State Farm General Insurance Company, State Farm Life Insurance Company, and State Farm Mutual Insurance Company.

I

Plaintiff, who suffers from rheumatoid arthritis, began working for defendant Martha J. Piney (Piney) in November 1994 as a probationary employee.   Martha J. Piney is the owner and operator of the Piney Insurance Agency, which sells exclusively insurance policies written by defendants State Farm.   On February 24, 1995, following a satisfactory three-month job performance review, defendant Piney offered and plaintiff accepted a position of regular employment as a claims specialist.   However, less than three weeks later, on March 10, defendant Piney terminated plaintiff's employment for alleged poor job performance.   Defendant Piney claims that the employment deficiencies noted in plaintiff's thirty- and sixty-day reviews had escalated to the extent that plaintiff's overall job performance was unsatisfactory.   However, in her deposition, plaintiff alleges that at the conclusion of her March 10 meeting with defendant Piney, Piney admitted to plaintiff that the true reason for her discharge was “[i]t's because you're handicap [sic].”

Following her discharge, plaintiff filed suit against defendant Piney and defendants State Farm, alleging a variety of claims.   The lower court granted summary disposition in favor of defendants pursuant to MCR 2.116(C)(10).   Plaintiff appeals as of right the dismissal of her claims of alleged unlawful discrimination in violation of the Michigan Handicappers' Civil Rights Act (HCRA), M.C.L. § 37.1101 et seq.;   M.S.A. § 3.550(101) et seq., intentional infliction of emotional distress, and negligent supervision.

II

A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual support for a claim.   In Quinto v. Cross & Peters Co., 451 Mich. 358, 362-363, 547 N.W.2d 314 (1996), the Supreme Court set forth the following standards for deciding such a motion:

In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), a trial court considers affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion.   A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the affidavits or other documentary evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law.   MCR 2.116(C)(10), (G)(4).

In presenting a motion for summary disposition, the moving party has the initial burden of supporting its position by affidavits, depositions, admissions, or other documentary evidence.  Neubacher v. Globe Furniture Rentals, 205 Mich.App. 418, 420, 522 N.W.2d 335 (1994).   The burden then shifts to the opposing party to establish that a genuine issue of disputed fact exists.  Id. Where the burden of proof at trial on a dispositive issue rests on a nonmoving party, the nonmoving party may not rely on mere allegations or denials in pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists.  McCart v. J. Walter Thompson, 437 Mich. 109, 115, 469 N.W.2d 284 (1991).   If the opposing party fails to present documentary evidence establishing the existence of a material factual dispute, the motion is properly granted.  McCormic v. Auto Club Ins. Ass'n, 202 Mich.App. 233, 237, 507 N.W.2d 741 (1993).

In the present case, plaintiff has established a genuine issue of material fact regarding whether she was unlawfully discriminated against because of her handicap.   Plaintiff testified regarding an alleged admission by defendant Piney of employment discrimination based on her handicap.   Because direct evidence of unlawful discrimination was presented, the burden-shifting approach of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), is not applicable.  Harrison v. Olde Financial Corp., 225 Mich.App. 601, 572 N.W.2d 679 (1997).   Accordingly, the lower court erred in granting summary disposition on the basis that plaintiff failed to satisfy her burdens of production under McDonnell Douglas.   As the Sixth Circuit Court of Appeals stated in Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1184 (C.A.6, 1996):

[W]hen the plaintiff has direct evidence of discrimination based on his or her disability, there is no need for a McDonnell Douglas type burden shift and traditional burdens of proof will apply․  Nonetheless, the disabled individual always bears the burden of proving that he or she is “otherwise qualified” for the position in question, absent the challenged job function or with the proposed accommodation.

Because plaintiff presented direct evidence of unlawful discrimination, the pivotal issue is whether plaintiff submitted sufficient evidence to establish a genuine issue of material fact that she was qualified for the position from which she was discharged.   Contrary to the position taken by the dissent, we conclude that plaintiff has sustained her burden for purposes of summary disposition.   We are mindful that it is not the role of the court to evaluate the strength of the evidence in ruling regarding a motion for summary disposition.   Rather, when deciding a motion for summary disposition that alleges no genuine issue of material fact,

[a] trial court tests the factual support of a plaintiff's claim when it rules upon a motion for summary disposition filed under MCR 2.116(C)(10).   Lichon v. American Universal Ins. Co., 435 Mich. 408, 414, 459 N.W.2d 288 (1990).   The court must consider the affidavits, pleadings, depositions, admissions, and documentary evidence submitted or filed in the action.   The court is not permitted to assess credibility, or to determine facts on a motion for summary judgment.  Zamler v. Smith, 375 Mich. 675, 678-679, 135 N.W.2d 349 (1965).   Instead, the court's task is to review the record evidence, and all reasonable inferences therefrom, and decide whether a genuine issue of any material fact exists to warrant a trial.7

[Skinner v. Square D Co., 445 Mich. 153, 161, 516 N.W.2d 475 (1994).]

 Viewing the evidence in a light most favorable to the nonmoving party, we conclude that plaintiff presented sufficient evidence for a reasonable person to conclude that she was qualified for the job from which she was discharged.   In particular, in a ninety-day performance review held less than three weeks before plaintiff's discharge, defendant Piney evaluated plaintiff's job performance as satisfactory.   In light of plaintiff's satisfactory job performance, defendant Piney thereafter offered plaintiff a regular full-time position.   Piney's February 24, 1995, offer of permanent employment to plaintiff states as follows:

Gail Norris

Start Date:  11/7/94

2/24/94 [sic] Three month review.   I have worked with Gail for three months and two weeks now.   In three months she has proven to be a quick learner, very task oriented, and very dependable.   At this time I am making an offer from temporary employment to holding the position of claims specialist for my agency with the hopes that Gail will continue to develop and grow as an expert in her position and continue to strive and reach the goals that are set for this agency.

Continued salary with benefit package as attached and presented at time of original start date.

2/24/95 /s/ Gail Norris   2/24/95 /s/ Martha J. Piney, agent

In addition to defendant Piney's admissions regarding plaintiff's job qualifications, plaintiff also presented the deposition testimony of coemployees who noted no change in plaintiff's job performance in the period from February 24, 1995, until her discharge.   Finally, although Piney claims that plaintiff was discharged because of poor customer-service skills, plaintiff submitted evidence that there were no complaints from customers regarding her job performance.

 After recognizing that fact finding and assessment of credibility are inappropriate when ruling regarding a motion for summary disposition, Dzierbowicz v. American Seating Co., 450 Mich. 969, 544 N.W.2d 473 (1996);  Crittenden v. Chrysler Corp., 178 Mich.App. 324, 443 N.W.2d 412 (1989), we conclude that a genuine issue of material fact exists regarding whether plaintiff was qualified for the position at the time of her discharge.

III

 Next, plaintiff claims that the lower court committed error requiring reversal in granting summary disposition in favor of defendants State Farm with regard to plaintiff's claims of unlawful discrimination and negligent supervision.   We disagree.   Regarding these issues, both sides claim that the appropriate test for respondeat superior liability is the economic reality test as set forth in McCarthy v. State Farm Ins. Co., 170 Mich.App. 451, 428 N.W.2d 692 (1988).   Although McCarthy appears to be applicable, we hold that McCarthy was wrongly decided and therefore should not be followed.1  McCarthy relied on worker's compensation cases in holding that respondeat superior liability should be decided on the basis of “the economic reality test.”   However, after McCarthy, it is now well established that except for worker's compensation benefits, the correct standard to assess respondeat superior liability is the control test, not the economic reality test.  Hoffman v. JDM Associates, Inc., 213 Mich.App. 466, 468-469, 540 N.W.2d 689 (1995);  Kral v. Patrico's Transit Mixing Co., 181 Mich.App. 226, 230-232, 448 N.W.2d 790 (1989).   Cf. Meridian Mut. Ins. Co. v. Wypij, 226 Mich.App. 276, 573 N.W.2d 320 (1997).2

 Here, plaintiff presented evidence of the economic dependency of defendant Piney on defendants State Farm. However, plaintiff presented no evidence that defendants State Farm had any right to control the employment decisions of Piney.   Absent any right of control, there is no liability of defendants State Farm for the action of defendant Piney under the doctrine of respondeat superior.  Hoffman, supra;  Kral, supra.

 Similarly, because defendants State Farm were not the employer of defendant Piney, defendants State Farm owed no duty to plaintiff regarding the claim of alleged negligent supervision of defendant Piney.   See, generally, Janice v. Hondzinski, 176 Mich.App. 49, 439 N.W.2d 276 (1989).   For these reasons, the lower court was correct in granting summary disposition in favor of defendants State Farm. Although the lower court's decision was based on a different rationale, we will not reverse when the lower court reaches the correct result albeit for the wrong reason.  Porter v. Royal Oak, 214 Mich.App. 478, 488, 542 N.W.2d 905 (1995);  State Mut. Ins. Co. v. Russell, 185 Mich.App. 521, 528, 462 N.W.2d 785 (1990).

IV

Finally, we conclude that the lower court correctly granted defendants' motion for summary disposition regarding plaintiff's claims of intentional infliction of emotional distress.   Assuming the facts as alleged by plaintiff to be true, defendants' conduct was not sufficiently outrageous to give rise to a separate cause of action for intentional infliction of emotional distress.  Doe v. Mills, 212 Mich.App. 73, 91, 536 N.W.2d 824 (1995).

For these reasons, we reverse in part and affirm in part with regard to defendant Piney and affirm with regard to defendants State Farm. Defendants State Farm may recover taxable costs.   No costs in favor of plaintiff or defendant Piney, neither party having prevailed in full.

I respectfully dissent.   I disagree with the majority's conclusion in section II, which is that the lower court erred in granting defendants summary disposition of plaintiff's claim brought under the Michigan Handicappers' Civil Rights Act (HCRA), M.C.L. § 37.1101 et seq.;   M.S.A. § 3.550(101) et seq.   I would affirm the order of the lower court granting defendants' motions for summary disposition pursuant to MCR 2.116(C)(10) because plaintiff has not established a genuine issue of material fact about whether she was qualified for the position from which she was terminated.

The majority correctly states that the lower court's analysis was improper in this case because plaintiff presented direct evidence of discriminatory intent, namely, defendant Martha J. Piney's alleged statement that she terminated plaintiff's employment because of plaintiff's handicap.   When a plaintiff is able to produce direct evidence of discriminatory intent, there is no need to utilize the burden of proof analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).  Matras v. Amoco Oil Co., 424 Mich. 675, 683-684, 385 N.W.2d 586 (1986);  Harrison v. Olde Financial Corp., 225 Mich.App. 601, 609, 572 N.W.2d 679 (1997).   In Harrison, a race discrimination case, this Court explained how a court should instead analyze whether summary disposition pursuant to MCR 2.116(C)(10) is appropriate in cases in which a plaintiff presents direct evidence of discriminatory animus.1  There, this Court held the following:

[W]e 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 plaintiff's claims are true.   [Harrison, supra at 612-613, 572 N.W.2d 679.]

Thus, according to this Court in Harrison, the plaintiff must present proof not only of the employer's discriminatory animus, but also proof of the plaintiff's own qualifications.2

Our Supreme Court determined the boundaries of the next inquiry, what it means to be a qualified employee, in Town v. Michigan Bell Telephone Co., 455 Mich. 688, 568 N.W.2d 64 (1997) (analyzing age and sex discrimination claims under the McDonnell Douglas analysis).3  The Court stated that “[a]n employee is qualified if he was performing his job at a level that met the employer's legitimate expectations.”  Id. at 699, 568 N.W.2d 64, citing Bouwman v. Chrysler Corp., 114 Mich.App. 670, 679, 319 N.W.2d 621 (1982);   Menard v. First Security Services Corp., 848 F.2d 281, 285 (C.A.1, 1988);   McDonald v. Union Camp Corp., 898 F.2d 1155, 1160 (C.A.6, 1990).   Accordingly, I would hold that the recent pronouncements of this Court in Harrison and our Supreme Court in Town together provide the proper analysis for deciding when summary disposition pursuant to MCR 2.116(C)(10) is appropriately granted in a case involving direct evidence of handicapper discrimination.

To support their burden as the moving party, defendants presented in the form of the monthly performance reviews signed by plaintiff and defendant Piney well-documented evidence that plaintiff was not working at a level that met defendant Piney's expectations.   Plaintiff's first-month review reveals that Piney rated plaintiff's work performance as satisfactory with the exception of plaintiff's telephone and customer service skills, which Piney indicated needed improvement.   Plaintiff's second-month review indicates that plaintiff continued to have difficulty with her telephone and customer service skills.   Indeed, this review specifically stated that Piney would terminate plaintiff's employment if plaintiff did not make improvements in those areas.   Plaintiff's third-month review indicates an improvement in her work performance, which apparently caused Piney to have “hopes that [plaintiff] will continue to develop” and end plaintiff's probationary period.   However, as both parties concede, Piney met with plaintiff seven days later to discuss her concern that plaintiff's work performance had since declined and instead displayed the same problems evident at the first and second performance reviews.   Piney told plaintiff that she would review plaintiff's progress in one week and that, if improvements were not made, then she would terminate plaintiff's employment.   Shortly thereafter, Piney terminated plaintiff's employment.

In response to defendants' evidence of her poor work performance at the Piney Insurance Agency, plaintiff presented three pieces of evidence:  first, the absence of any complaints from policyholders;  second, the excerpts of deposition testimony from plaintiff's two peers that they did not notice a change in plaintiff's work performance;  and third, plaintiff's “promotion” to a permanent position two weeks before her termination.   I would hold that plaintiff has failed to create a genuine issue of material fact about her qualifications, not because the evidence she has proffered in this regard is weak, but because it is irrelevant.  “ ‘If the nonmoving party cannot muster sufficient evidence to make out its claim, a trial would be useless and the moving party is entitled to summary judgment as a matter of law.’ ”   Quinto v. Cross & Peters Co., 451 Mich. 358, 362, 547 N.W.2d 314 (1996), quoting Celotex v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (Brennan, J., dissenting).

Initially, I would disregard the absence of any complaints by policyholders.   Defendant Piney's complaint about plaintiff's work performance concerned plaintiff's telephone and customer service skills, which would not necessarily result in complaints by the policyholders, only dissatisfaction by the employer.   Therefore, this piece of evidence is unavailing.   With regard to plaintiff's second piece of evidence, I note that in light of our Supreme Court's definition of a qualified employee, plaintiff's peers' assessments of her work performance, or even plaintiff's own assessment, are irrelevant because it is the “employer's legitimate expectations” that dictate the standard to which plaintiff should perform.  Town, supra at 699, 568 N.W.2d 64.   Last, the short-lived duration of plaintiff's term of employment at the Piney Insurance Agency and the sole positive evaluation of her work performance, the third monthly review that ended her probationary period, is evidence that favors defendants' claim that plaintiff was not performing her job at a level that met her employer's legitimate expectations.   Plaintiff cannot raise a material issue of fact regarding the question of the quality of her work performance merely by challenging the judgment of her supervisor.   See, e.g., McDonald, supra at 1160 (stating that the court's aim should not be to review bad business decisions or question the soundness of an employer's judgment).

While this Court must resolve all doubts in favor of the party opposing summary disposition, I would conclude that plaintiff did not present sufficient evidence to demonstrate the existence of a material factual dispute that she was qualified for the position from which she was discharged, as “ qualified” is defined in Town, supra at 699, 568 N.W.2d 64.   Simply put, plaintiff did not present relevant evidence to show that she was doing her job well enough to rule out the possibility that she was discharged for inadequate job performance.   Consequently, I believe that plaintiff has failed to prove a prima facie case of handicapper discrimination and would affirm the lower court's decision to grant defendants summary disposition.   I note that although the lower court applied the McDonnell Douglas analysis, it arrived at the same conclusion I reach.   My reasoning is consistent with the lower court's decision that plaintiff failed to demonstrate that her poor work performance was a mere pretext for defendants' discrimination, the third step in the McDonnell Douglas analysis.

My analysis of this issue makes it unnecessary to reach plaintiff's argument that the lower court erred in granting defendants State Farm Fire and Casualty Company, State Farm Annuity and Life Insurance Company, State Farm General Insurance Company, State Farm Life Insurance Company, and State Farm Mutual Insurance Company summary disposition of plaintiff's claims, which is discussed in section III of the majority opinion;  therefore, I express no opinion with regard to this issue.   I am in agreement with the majority's resolution of plaintiff's claim of intentional infliction of emotional distress, which is discussed in section IV.

FOOTNOTES

FN7. As we noted in Durant [v. Stahlin, 375 Mich. 628, 646-647, 135 N.W.2d 392 (1965) ], “there is a great difference between an inquiry to determine whether or not there is an issue of fact and a trial to decide a disputed issue of fact.”.  FN7. As we noted in Durant [v. Stahlin, 375 Mich. 628, 646-647, 135 N.W.2d 392 (1965) ], “there is a great difference between an inquiry to determine whether or not there is an issue of fact and a trial to decide a disputed issue of fact.”

1.   McCarthy predates MCR 7.215(H) and its predecessors, Administrative Orders 1990-6, 1994-4, and 1996-4.   Accordingly, McCarthy is not precedentially binding on this Court.

2.   Meridian addresses an employee exclusion in an insurance policy that does not define the term “employee.”   The Meridian panel's holding regarding the undefined insurance policy term is not applicable to the present case.   To the extent that dicta in Meridian conflicts with our decision, we chose not to follow it and note that the Meridian panel was obligated to follow our prior decision, Hoffman v. JDM Associates, Inc., supra.

1.   Michigan courts have not yet addressed the principles of proof for a direct-evidence case involving handicapper discrimination;  however, Harrison is sufficiently similar to this case to justify adopting the principles of proof espoused there.   Both cases involve a plaintiff's direct evidence of discrimination, are single-plaintiff cases, and involve a defendant's mixed motives.   See Harrison, supra at 610, 572 N.W.2d 679.   This case is a mixed-motive case because defendants' adverse employment decision could have been based on several factors, including a legitimate factor such as plaintiff's work performance as well as a legally impermissible factor such as plaintiff's handicap.

2.   The majority also cites Monette v. Electronic Data Systems Corp., 90 F.3d 1173 (C.A.6, 1996), a case that included claims under the federal Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., as well as Michigan's HCRA. It is appropriate to consider the Sixth Circuit Court of Appeals' analysis because the HCRA and the ADA share similar purposes and contain similar definitions.  Stevens v. Inland Waters, Inc., 220 Mich.App. 212, 216-217, 559 N.W.2d 61 (1996).

3.   I recognize that the definition in Town, supra at 699, 568 N.W.2d 64, is derived from a plurality decision of our Supreme Court, which is technically not binding on this Court because a majority of the justices failed to concur on the exact reasoning for the holding.  Negri v. Slotkin, 397 Mich. 105, 109, 244 N.W.2d 98 (1976).   However, I believe that a careful reading of Justice Riley's concurring opinion in Town, supra at 707-714, 568 N.W.2d 64, reveals that she did not disagree with the lead opinion's proposition that the question about an employee's qualifications is answered by considering whether the employer's expectations were satisfied.   For example, Justice Riley would require that employers be given wide discretion in setting job standards and in deciding whether employees meet those standards.  Id. at 709, 568 N.W.2d 64.   Because Justice Riley's perspective is similar, if not the same, to that of the lead opinion in this respect, it would be wasteful of judicial resources to disregard Town. See People v. Scarborough, 189 Mich.App. 341, 344, 471 N.W.2d 567 (1991).   In any event, I am additionally persuaded by the language of the decisions upon which the definition relies, Town, supra at 699, n. 22, 568 N.W.2d 64, and therefore would adopt the definition in Town as the proper approach to determining whether an employee is qualified.   See also Ang v. Procter & Gamble Co., 932 F.2d 540, 548 (C.A.6, 1991) (holding that the test of whether an employee is qualified is whether the employee is meeting the “employer's legitimate expectations”).

RICHARD ALLEN GRIFFIN, Judge.

CORRIGAN, C.J., concurred.