Robson v. General Motors Corp.

Per Curiam. Plaintiff brought this action pursuant to the Michigan Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq., to recover damages and obtain injunctive relief for alleged discrimination in employment. The circuit judge granted an accelerated judgment for defendant pursuant to GCR 1963, 116.1(5), holding that plaintiff’s claim was barred by the applicable statute of limitations, MCL 600.5805(8); MSA 27A.5805(8), and plaintiff appeals as of right. Plaintiff correctly points out that where, as here, a jury trial has been demanded as of right on or before the day of the hearing on a motion for accelerated judgment pursuant to GCR 1963, 116.1(5), resolution of any disputed questions of fact material to the motion must be postponed until the trial on the merits. However, because the circuit court’s decision was correct even if plaintiff’s factual claims are assumed to be true, postponement of resolution of the motion until the trial on the merits was unnecessary here. As a child, plaintiff contracted polio and, as a result, was forced to undergo two operations to fuse vertebrae in his back. Plaintiff was employed by defendant as a test driver from 1965 to 1978 and performed satisfactorily in that capacity. Plaintiff’s back condition remained unchanged during the course of his employment as a test driver. Nevertheless, in December, 1978, after a routine physical examination, plaintiff was removed from test driving because of his back condition. Plaintiff continued to work for defendant in other capacities until February 12, 1982, when he was laid off. *653 Plaintiffs complaint was filed on June 14, 1982. A three-year limitations period is established by MCL 600.5805(8); MSA 27A.5805(8). The crucial date is therefore June 14, 1979, and plaintiff’s removal from test driving occurred before that date. Plaintiff, however, contends that his claim is not barred, either because defendant’s conduct amounted to a continuing violation of the Handicappers’ Civil Rights Act from December, 1978, until February 12, 1982, or because of other violations of the act by defendant within the limitations period. Michigan courts regard federal precedents on questions analogous to those presented under Michigan’s civil rights statutes as highly persuasive, although not binding. Northville Public Schools v Civil Rights Comm, 118 Mich App 573, 576; 325 NW2d 497 (1982). In United Air Lines, Inc v Evans, 431 US 553; 97 S Ct 1885; 52 L Ed 2d 571 (1977), plaintiff, an airline flight attendant, had been forced to resign when she married. She was subsequently rehired, but she was treated as a new employee for seniority purposes. Plaintiff’s forced resignation did not take place within the limitations period, but plaintiff argued that the continuing effect of the forced resignation on her seniority established a continuing violation extending within the limitations period. The Court rejected plaintiff’s argument, holding that what was necessary was a violation within the limitations period, not merely the continuing effects of past violations. In Delaware State College v Ricks, 449 US 250; 101 S Ct 498; 66 L Ed 2d 431 (1980), plaintiff, a college professor, was denied academic tenure but was not discharged immediately. Instead, he was offered, and he accepted, a one-year terminal con *654 tract. Plaintiffs employment terminated with the expiration of that contract. Explaining that the termination of employment was merely an effect of the allegedly discriminatory denial of tenure, the Court held that the limitations period began to run with the denial of tenure rather than with the termination of employment. In Chardon v Fernandez, 454 US 6; 102 S Ct 28; 70 L Ed 2d 6 (1981), the Court held that the limitations period began to run when the plaintiffs were notified that their employment would be terminated, not when termination actually occurred. The Court explained that Ricks showed that the proper focus was on the time of the discriminatory act, not the time at which the consequences of the act became painful. Evans, Ricks and Chardon persuade us that the circuit court here did not err by granting an accelerated judgment for defendant. Plaintiff’s complaint contains the following allegations: "15. From the time that plaintiff was removed from his position as a test driver until the date of his termination, he was continually subjected to a policy of handicap discrimination, including but not limited to, changes in shift assignment, loss of bonus, denial of promotions, and other changes in the terms, conditions and benefits of his employment which would not have occurred had he not been subjected to defendant’s continuing policy of discrimination against the handicapped. "16. On or around February 12, 1982, plaintiff’s employment with defendant was terminated. "17. Said termination would not have occurred had plaintiff not been discriminated against on the basis of his handicap.” In his brief on appeal, plaintiff lists the following events: *655 "1. March, 1980: Dr. Tripp reviews the letter from Dr. William S. Smith who has recommended that appellant be allowed to go back to test driving. Dr. Tripp evaluates appellant’s condition in light of this new information, and issues a written report. On March 19, 1980, Dr. Tripp issues a new 'Classifications and Recommendations’ form based upon the Dr. Smith letter. "2. April 17, 1980: Dr. Tripp issues another 'Classifications and Recommendations’ form which changes appellant’s restrictions, but still prohibits him from road test driving. "3. May 16, 1980: Appellant is transferred out of the test driving department into the security department due to his restrictions. He makes a request to be placed in the 'dynamometer group’, or the 'road maintenance department’ but is denied because of his weight restrictions. "4. August of 1981: Appellant is given another annual or 'periodic’ medical examination by a new doctor. The purpose of this examination is to determine whether he should be placed under or continue with restrictions. The new doctor issues a new report, first indicating that appellant is 'unrestricted’, but later changes this to prohibit him from test driving. "5. February 12, 1982: Appellant is laid off due to his restrictions.” The changes in terms, conditions and benefits of plaintiffs employment and plaintiffs eventual layoff, on the undisputed facts presented here, were analogous to the seniority at issue in Evans. The changes and eventual layoff were mere consequences or effects of the 1978 decision to remove plaintiff from test driving. Defendant’s failures to reinstate plaintiff as a test driver after various reviews of plaintiff’s condition were analogous to the terminations at issue in Ricks and Chardon. Ricks and Chardon show that the limitations period begins to run with the discriminatory act, not with the employer’s subsequent failure to change *656 its mind. Requests for relief from a prior discriminatory act will not start the limitations period running anew. Equal Employment Opportunity Comm v McCall Printing Corp, 633 F2d 1232, 1237 (CA 6, 1980). A contrary rule would permit a plaintiff to circumvent the statute of limitations and revive a cause of action by merely requesting the employer to undo its past acts. Affirmed.