Chmielewski v. Xermac, Inc , 216 Mich. App. 707 ( 1996 )

550 N.W.2d 797 (1996) 216 Mich. App. 707

Gary P. CHMIELEWSKI, Plaintiff-Appellant,
v.
XERMAC, INC., Defendant-Appellee.

Docket No. 162968.

Court of Appeals of Michigan.

Submitted October 17, 1995, at Lansing. Decided May 21, 1996, at 9:05 a.m. Released for Publication July 12, 1996.

Muth & Fett, P.C. by James K. Fett, Ypsilanti, for plaintiff.

Kerr, Russell & Weber by Daniel G. Beyer, Detroit, for defendant.

Before: MacKENZIE, P.J., and FITZGERALD and O'BRIEN,^[*] JJ.

MacKENZIE, Presiding Judge.

Plaintiff appeals as of right a jury verdict for defendant in this handicap discrimination case. We affirm.

Plaintiff worked as a salesperson for defendant from November 1985 until June 29, 1990. He underwent a liver transplant in June 1989 for cirrhosis of the liver caused by alcoholism and was off work for approximately six weeks before being released to return to work by his physician. His employment was terminated approximately seven months later, allegedly because of his failure to meet sales quotas.

In October 1990, plaintiff instituted this action against defendant for violation of the Michigan Handicappers' Civil Rights Act (HCRA), M.C.L. § 37.1101 et seq.; M.S.A. § 3.550(101) et seq., claiming that defendant terminated him because of the high health insurance costs attributable to his condition. A claim of breach of an employment contract was subsequently added to the complaint. Defendant moved for summary disposition of both counts. The trial court denied defendant's motion in part and granted it in part, dismissing plaintiff's wrongful discharge claim but finding a material issue of fact remained regarding the discrimination claim. At trial, plaintiff argued that the carrying of a transplanted liver and the side effects thereof, without the use of medication, constituted a handicap. Defendant argued that plaintiff was not handicapped because (1) with medication, he does not have a determinable physical characteristic that substantially limits a major life activity, and (2) he is an alcoholic. A jury returned a verdict for defendant with regard to the discrimination claim.

Plaintiff first claims that the trial court erred in admitting at trial evidence of his alcoholism. We disagree.

Evidence that tends to make the existence of a fact at issue more probable or less probable is relevant and, therefore, admissible. MRE 401, 402. However, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. MRE 403; McDonald v. Stroh Brewery Co., 191 Mich.App. 601, 605, 478 N.W.2d 669 (1991). The fact that evidence is damaging and harms the opposing party does not indicate that it is unfairly prejudicial. Sclafani v. Peter S. Cusimano, Inc., 130 Mich.App. 728, 735, 344 N.W.2d 347 (1983). Further, error requiring reversal may not be predicated upon a ruling that admits evidence unless a substantial right was affected. MRE 103(a); Temple v. Kelel Distributing Co., Inc., 183 Mich.App. 326, 329, 454 N.W.2d 610 (1990).

The HCRA expressly excludes alcoholism, and determinable physical or mental characteristics caused by the use of alcohol, as a handicap with respect to employment discrimination when the condition prevents the employee from performing his job duties. M.C.L. § 37.1103(f)(ii); M.S.A. § 3.550(103)(f)(ii); Gazette v. Pontiac, 212 Mich.App. 162, 168-169, 536 N.W.2d 854 (1995). Plaintiff contends that this restriction is not applicable to the present case because defendant conceded that alcoholism did not affect his job performance. However, defense counsel argued during closing arguments that plaintiff's poor work performance when he returned from his leave of absence resulted from plaintiff's failure to fully recover from the injuries caused by his alcoholism. In its instructions, the trial court cautioned the jury regarding the manner in which the evidence of plaintiff's alcoholism should be used in determining whether plaintiff could be considered handicapped:

Now, ladies and gentlemen, if the history of the physical characteristic was caused by the use of alcoholic liquor but the physical characteristic did not prevent the Plaintiff from performing his job, then you are to disregard the fact that use of alcohol caused the physical characteristic.

On the other hand, if you find that the Plaintiff has a determinable physical characteristic caused by the use of alcoholic liquor and that characteristic prevented the Plaintiff from performing the duties of his job, then the Plaintiff is not handicapped under the law.

A person, ladies and gentlemen, cannot have a history of [a] determinable physical characteristic to be construed as a handicap if the physical characteristic was caused by the use of an alcoholic liquor which prevented the person from performing the duties of his job.

Because evidence of alcohol use is a consideration in determining whether the plaintiff fell within the definition of handicapped, evidence of plaintiff's alcohol use was relevant and more probative than prejudicial. Thus, the court did not abuse its discretion in admitting the evidence of plaintiff's alcohol use.

Further, the evidence was relevant and was more probative than prejudicial with regard to the issue of damages. According to the testimony of plaintiff's physician, serious risks exist for patients who continue to consume alcohol after a liver transplant. Consequently, plaintiff's alcohol use could affect his life expectancy and, therefore, defendant's liability for damages.

Plaintiff next contends that the trial court erred in admitting evidence of defendant's financial condition because defendant did not raise economic necessity as a defense. Under MCR 2.111(F)(3), affirmative defenses must be raised in the responsive pleading or in a motion for summary disposition made before the filing of a responsive pleading, and the failure to do so constitutes a waiver of the defense. Stanke v. State Farm Mutual Automobile Ins. Co., 200 Mich.App. 307, 311, 503 N.W.2d 758 (1993). An affirmative defense is a defense that does not controvert the establishment of a prima facie case, but that otherwise denies relief to the plaintiff. Id. at 312, 503 N.W.2d 758.

In a handicap discrimination case, the plaintiff has the burden of proving as an element of the prima facie case that the employer discharged the plaintiff because of the handicap. Dzierbowicz v. American Seating Co., 209 Mich.App. 130, 132, 530 N.W.2d 158 (1995), rev'd on other grounds 450 Mich. 966, 544 N.W.2d 473 (1996). Evidence that the decision to terminate the plaintiff was motivated by economic considerations directly controverted this element of the prima facie case and, therefore, by definition did not constitute an affirmative defense. Stanke, supra. Accordingly, the trial court did not abuse its discretion in admitting evidence of defendant's financial condition.

Last, plaintiff contends that reversal is required because of instructional error. Again, we disagree.

Subsection 103(e)(i)(A) of the HCRA, M.C.L. § 37.1103(e)(i)(A); M.S.A. § 3.550(103)(e)(i)(A), defines a handicap as

(i) A determinable physical or mental characteristic of an individual, which may result from disease, injury, congenital condition of birth, or functional disorder, if the characteristic:

(A) ... substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual's ability to perform the duties of a particular job or position. [Emphasis added.]

On the basis of this language, plaintiff contends that he was entitled to a supplemental jury instruction defining a handicapped person as one who

has a determinable physical characteristic which substantially limits one or more life activities ... even if the determinable characteristic is controlled with medication or medical care. [Emphasis added.]

When a party requests an instruction that is not covered by the standard jury instructions, the trial court may, in its discretion, give additional, concise, understandable, conversational, and nonargumentative instructions, provided they are applicable and accurately state the law. MCR 2.516(D)(4); Wengel v. Herfert, 189 Mich.App. 427, 431, 473 N.W.2d 741 (1991). The requested instruction does not accurately state the law, and thus was properly refused.

The alleged handicap at issue in this case is characterized by plaintiff as carrying a transplanted organ. However, it is undisputed that plaintiff's status as an organ donee in no way affected his major life activities or his ability to perform his job duties, as long as plaintiff took antirejection medication. Viewed in this context, plaintiff's condition is akin to that of a person whose high blood pressure or allergies are controlled by medication, or who receives hormone replacement therapy, or whose poor eyesight requires corrective lenses. In each instance, the chronic "handicapping" condition is ameliorated by medical means with relative ease.

Under the plain language of subsection 103(e)(i)(A) of the HCRA, to fall within the definition of a handicap, an individual's condition—whether being treated or not—must substantially impair the person's major life activities.^[1] The instruction requested by plaintiff does not state that proposition. Instead, it leaps to the conclusion that if a condition requires medication, then it constitutes a substantial impairment per se. We find that conclusion to be unreasonable and incompatible with the purpose of the HCRA. As stated in Forrisi v. Bowen, 794 F.2d 931, 934 (C.A.4, 1986):

It would debase this high purpose [of protecting the disabled from discrimination in employment] if the statutory protections available to those truly handicapped could be claimed by anyone whose disability was minor and whose relative severity of impairment was widely shared. Indeed, the very concept of an impairment implies a characteristic that is not commonplace and that poses for the particular individual a more general disadvantage in his or her search for satisfactory employment.

In the final analysis, plaintiff's claimed handicap is that he must take medication to control a chronic condition. This "handicap" is shared by countless other individuals in the workplace and in society as a whole. To automatically label the condition as one that substantially impairs major life activities, as the requested instruction would do, is inconsistent with the HCRA and, as pointed out by the Forrisi court, does a gross disservice to the truly handicapped. Accordingly, we hold that the instruction was inconsistent with the HCRA and that it was properly withheld from the jury.

Affirmed.

O'BRIEN, J., concurred.

FITZGERALD, Judge (concurring in part and dissenting in part).

I respectfully dissent from the majority's conclusion that the trial court did not err in denying plaintiff's request that the jury be instructed that a condition that limits a life activity is a handicap even if the condition is controlled with medication or medical care.

The determination whether an instruction is accurate and applicable based on the characteristics of a case is within the sound discretion of the trial court. Williams v. Coleman, 194 Mich.App. 606, 623, 488 N.W.2d 464 (1992). When a party requests an instruction that is not covered by the standard jury instructions, the trial court may, at its discretion, give additional, concise, understandable, conversational, and nonargumentative instructions, provided they are applicable and accurately state the law. MCR 2.516(D)(4); Wengel v. Herfert, 189 Mich.App. 427, 431, 473 N.W.2d 741 (1991). A supplemental instruction need not be given if the instruction would neither add anything to an otherwise balanced and fair jury charge nor enhance the ability of the jurors to decide the case intelligently, fairly, and impartially. Houston v. Grand Trunk W.R. Co., 159 Mich.App. 602, 608, 407 N.W.2d 52 (1987). The failure to give a properly requested, applicable, and accurate instruction does not require reversal unless failure to vacate the jury verdict would be inconsistent with substantial justice. Johnson v. Corbet, 423 Mich. 304, 326, 377 N.W.2d 713 (1985).

Before its amendment in 1990, the Michigan Handicappers' Civil Rights Act (HCRA) defines the term handicap as

a determinable physical or mental characteristic of an individual or a history of the characteristic which may result from disease, injury, congenital condition of birth, or functional disorder which characteristic:

(i) ... is unrelated to the individual's ability to perform the duties of a particular job or position, or is unrelated to the individual's qualifications for employment or promotion. [M.C.L. § 37.1103(b)(i); M.S.A. § 3.550(103)(b)(i).]

The Legislature amended the definitional language in 1990^[1] to define a handicap as

(i) A determinable physical or mental characteristic of an individual, which may result from disease, injury, congenital condition of birth, or functional disorder, if the characteristic:

(A) ... substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual's ability to perform the duties of a particular job or position. [M.C.L. § 37.1103(e)(i)(A); M.S.A. § 3.550(103)(e)(i)(A).]

Under both of these definitions, a condition related to an individual's ability to perform the duties of a job is not a handicap within the meaning of the HCRA. Koester v. Novi, 213 Mich.App. 653, 661-662, 540 N.W.2d 765 (1995). Here, plaintiff's physician testified that as long as plaintiff continued to take antirejection medication, plaintiff did not suffer any limitations on his major life activities or his ability to perform his job duties.

Given this testimony, plaintiff, relying on Hines v. Grand Trunk W.R. Co., 151 Mich.App. 585, 595-596, 391 N.W.2d 750 (1985), requested a supplemental jury instruction as follows:

A person that has a determinable physical characteristic which substantially limits one or more life activities is handicapped even if the determinable physical condition—physical characteristic is controlled with medication or medical care.

The trial court refused to give the instruction on the ground that Hines was decided under the preamendment definition of "handicap," which required only that the condition be unrelated to the plaintiff's ability to perform the duties of a particular job.

The added definitional language is nearly identical to the language in the federal Rehabilitation Act of 1973, 29 USC 706(8)(B), which defines a handicapped individual as any person who (1) has a physical or mental impairment that substantially limits one or more of such person's major life activities, (2) has a record of such an impairment, or (3) is regarded as having such an impairment. Because the new definitional language has yet to be interpreted in this state, federal case law interpreting the similar language of the federal act provides guidance in interpreting the HCRA.

The federal courts have recognized that an individual who suffers a life-threatening condition brought under control by medication may still suffer a limitation of major life activity to the extent that the condition, even though controlled, affects the individual's employability. See, e.g., Reynolds v. Brock, 815 F.2d 571, 574 (C.A.9, 1987) (epilepsy); Bey v. Bolger, 540 F.Supp. 910, 927 (E.D.Pa, 1982) (high blood pressure). Moreover, under the federal statute, the court's have recognized that it is sufficient if the individual has a "record" of impairment, even though the impairing condition is in remission or under control. In School Bd. of Nassau Co., Florida v. Arline, 480 U.S. 273, 281, 107 S.Ct. 1123, 1127-1128, 94 L.Ed.2d 307 (1987), the Supreme Court found that an employee's hospitalization for tuberculosis in 1957 was a sufficient record of impairment to establish that the employee was handicapped under the federal act, even though the disease remained in remission for approximately twenty years after the hospitalization:

This impairment was serious enough to require hospitalization, a fact more than sufficient to establish that one or more of her major life activities were substantially limited by her impairment. Thus, Arline's hospitalization for tuberculosis in 1957 suffices to establish that she has a "record of... impairment" ... and is therefore a handicapped individual.

Despite the additional requirement that the condition substantially limit one or more of the individual's major life activities, the conclusion in Hines that a person whose condition is controlled by medication may still qualify as handicapped remains viable. I disagree with the majority's conclusion that the proposed instruction leaps to the conclusion that if a condition requires medication then it constitutes a substantial impairment per se. Rather, the instruction provides that an individual who suffers a determinable physical characteristic that is brought under control by medication may still suffer a substantial limitation of major life activity to the extent that the condition, even though controlled, affects the individual's employability. Because a disputed issue at trial was whether plaintiff was in fact handicapped, plaintiff's proposed supplemental instruction was both applicable and accurate under the facts of this case, and may have enhanced the ability of the jurors to decide the case intelligently, fairly, and impartially. Houston, supra at 608, 407 N.W.2d 52. Therefore, the trial court abused its discretion in refusing the requested instruction.

The failure to give a properly requested, applicable, and accurate instruction does not require reversal unless failure to vacate the jury verdict would be inconsistent with substantial justice. MCR 2.613(A); Houston, supra at 609, 407 N.W.2d 52. Here, during closing argument plaintiff's counsel argued that the jury was to consider plaintiff's determinable physical condition without the use of medication to determine whether he suffered a substantial limitation of a major life activity. Defense counsel argued that the definition of "handicap" under the act did not require consideration of the fact that medication was used to control the condition, and that a condition controlled by medication was not a handicap. Both plaintiff and defendant vigorously argued the role of medication in this case, and a note sent by the jury to the trial court reveals that the jury was apparently confused regarding the role medication can play in determining whether a physical condition qualifies as a handicap. Not having the benefit of a special verdict form to determine the basis of the jury's verdict for defendant, I would conclude that the failure of the trial court to give plaintiff's proposed instruction resulted in substantial injustice. I would reverse and remand for a new trial.

In all other respects, I concur with the majority opinion.

NOTES

[*] John Patrick O'Brien, Recorder's Court judge, sitting on the Court of Appeals by assignment.

[1] Accord Joyce v. Suffolk Co., 911 F.Supp. 92 (E.D.N.Y., 1996) (employee not handicapped; poor eyesight corrected by eyeglasses and high blood pressure controlled with medication are not physical impairments that substantially limit major life activities); Walker v. Aberdeen-Monroe Co. Hosp, 838 F.Supp. 285 (N.D.Miss., 1993) (employee not handicapped; sarcoidosis and poor vision controlled with medication do not substantially limit employee's major life activities); Cadelli v. Fort Smith School Dist., 852 F.Supp. 789 (W.D.Ark., 1993) (employees not handicapped; anxiety panic disorder and high blood pressure treated with medication do not substantially limit employee's ability to work); Davis v. Frank, 1992 WL 170553, 1992 USDist LEXIS 10402; 59 EmplPracDec (CCH) p 41,744 (employee not handicapped; high blood pressure and "nervousness" controlled with medication pose no restriction on worker's life activities).

[1] 1990 PA 121.