                           STATE OF MICHIGAN

                            COURT OF APPEALS



MARY PAYMENT,                                                         UNPUBLISHED
                                                                      August 10, 2017
               Plaintiff-Appellant,

v                                                                     No. 332827
                                                                      Chippewa Circuit Court
DEPARTMENT OF TRANSPORTATION,                                         LC No. 14-013463-CD

               Defendant-Appellee.


Before: MARKEY, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ.

PER CURIAM.

        Plaintiff appeals by right the trial court’s grant of summary disposition in favor of
defendant pursuant to MCR 2.116(C)(10). This matter arose because defendant repeatedly
passed plaintiff over for a promotion in favor of applicants plaintiff contends were less qualified.
Plaintiff alleges that defendant discriminated against her for her depression and anxiety contrary
to the Michigan Persons with Disabilities Civil Rights Act (PWDCRA), MCL 37.1101 et seq.
The trial court concluded that plaintiff was not “disabled” under the PWDCRA and Michigan
case law interpreting the act, and even if she was disabled, she had failed to show that defendant
either relied on any such disability or retaliated against her in making its hiring decisions. We
affirm.

        As an initial matter, plaintiff contends that the trial court applied an incorrect standard in
evaluating and granting the motion for summary disposition. We decline to consider this issue
because our review of a motion for summary disposition is de novo. Maiden v Rozwood, 461
Mich 109, 118; 597 NW2d 817 (1999). In reviewing a motion decided pursuant to MCR
2.116(C)(10), we review all of the evidence submitted by the parties to determine whether the
entire record, considered in the light most favorable to the non-moving party, shows that no
genuine question of material fact exists for trial. Id. at 118, 120. The trial court correctly stated
that the nonmoving party may not withstand a motion for summary disposition merely because
there is a possibility that a claim might be supported at trial or by promising to establish an issue
of fact. Id. at 120-121. Courts may not make credibility assessments in deciding a motion for
summary disposition. Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994).
However, a question of material fact may not be established by “speculation and conjecture,” and
any speculative testimony by witnesses is properly excluded from consideration. Ghaffari v
Turner Const Co, 268 Mich App 460, 464-465; 708 NW2d 448 (2005).


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        Plaintiff substantively argues first that the trial court incorrectly found that she was not
disabled, that she did not have a history of being disabled, and that defendant did not perceive
her as being disabled. Disability is defined by the PWDCRA as, in relevant part, a determinable
mental characteristic of an individual that substantially limits at least one major life activity and
is unrelated either to the person’s qualifications for their job or ability to perform their job duties.
MCL 37.1103(D)(i). This includes actually having that characteristic, having a history of that
characteristic, or being regarded as having that characteristic. MCL 37.1103(D)(i)-(iii). To
establish a violation of the PWDCRA, a plaintiff must demonstrate, in relevant part, a disability
as defined by the PWDCRA and that she has suffered discrimination as defined in the
PWDCRA. Peden v Detroit, 470 Mich 195, 204; 680 NW2d 857 (2004); Chmielewski v
Xermac, Inc, 457 Mich 593, 602; 580 NW2d 817 (1998). There is no serious dispute, nor would
we entertain any, that depression and anxiety can cause one to be “disabled” for the purpose of
the PWDCRA.

        However, a diagnosis does not categorically translate to a disability under the PWDCRA.
Chmielewski, 457 Mich at 611; Chiles v Machine Shop, Inc, 238 Mich App 462, 474; 606 NW2d
398 (1999). The parties dispute whether plaintiff’s condition should be evaluated with or
without the benefit of plaintiff’s medication. Binding case law from our Supreme Court
establishes that courts should consider the mitigating effect of medication when deciding
whether a condition is a disability, rejecting arguments to the contrary. Chmielewski, 457 Mich
at 603-613. We note that although Chmielewski cited federal precedent in partial support of that
conclusion, it clearly relied primarily on its reading of Michigan’s statute, and it further
cautioned that a person may well be disabled despite receiving maximally effective treatment.
Id. Thus, “the law requires the factfinder to assess the individual’s condition as it actually
exists.” Id. at 613. Our Supreme Court noted that it agreed with Sutton v United Air Lines, Inc,
130 F3d 893, 901 (CA 10, 1997), which, a year after Chmielewski was decided, was affirmed by
the United States Supreme Court. Sutton v United Air Lines, Inc, 527 US 471, 119 S Ct 2139,
144 L Ed 2d 450 (1999).

        Plaintiff inexplicably argues that Chmielewski is no longer “good law,” because after the
United States Supreme Court decided Sutton, Congress amended the ADA to, in effect, overturn
Sutton. Michigan has undertaken no similar amendment to the PWDCRA. The PWDCRA and
the ADA are not identical, and “federal laws and regulations are not binding authority on a
Michigan court interpreting a Michigan statute.” Peden, 470 Mich at 217. Only a PWDCRA
claim is pending in this action. The fact that our Supreme Court found some reasoning in federal
cases to be persuasive does not make any then-similar federal law under consideration applicable
to Michigan. Indeed, our Supreme Court explicitly “caution[ed] against simply assuming that the
PWDCRA analysis will invariably parallel that of the ADA.” Id. A claim under the PWDCRA
depends on the statutory language found in the PWDCRA, not on the statutory language found in
some other piece of legislation from a different jurisdiction. See Chiles, 238 Mich App at 472-
473. Because the PWDCRA has not been amended similarly to the ADA, and our Supreme
Court has not revisited Chmielewski, Chmielewski remains “good law.” The trial court correctly
determined that it must evaluate whether plaintiff is “disabled” on the basis of her condition as it
is with the benefit of medication.

       Additionally, a “disability” must affect a “major life activity.” Major life activities
include “‘functions such as caring for oneself, performing manual tasks, walking, seeing,

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hearing, speaking, breathing, learning and working.’” Chiles, 238 Mich App at 477, quoting
Stevens v Inland Waters, Inc, 220 Mich App 212, 217; 559 NW2d 61 (1996). “Whether an
impairment substantially limits a major life activity is determined in light of (1) the nature and
severity of the impairment, (2) its duration or expected duration, and (3) its permanent or
expected permanent or long-term effect.” Lown v JJ Eaton Place, 235 Mich App 721, 728; 598
NW2d 633 (1999). The plaintiff must provide “some evidence from which a factfinder could
conclude that her disability caused substantial limitations when compared to the average person.”
Id. at 731. “Nonwork major life activities are examined in light of whether the person can
perform the normal activities of daily living.” Id. at 731-732. The parties correctly agree that
any such limitation should be evaluated as of the time of the challenged employment decision.
Michalski v Reuven Bar-Levav, 463 Mich 723, 735; 625 NW 2d 754 (2001); Lown, 235 Mich
App at 734-735. Clearly, this would include whether plaintiff had a history of being disabled or
was regarded as being disabled at that time, in addition to whether she was actually disabled at
that time.

        Plaintiff contends that she is nevertheless disabled within the meaning of the PWDCRA
even with the benefit of her medication. Plaintiff stated in an interrogatory response that the
major life activities suffering substantial limitations were “thinking, concentrating, decision-
making, remembering details, sleeping, eating, caring for myself, breathing, cardiovascular
functioning, and working.” At her deposition, she largely relied on that statement from the
interrogatory. This statement would tend to support a finding that she is indeed disabled.
However, she also agreed that her medicine allowed her to control both her depression and her
anxiety. Her doctor also testified that although there was no such thing as a cure for depression
or anxiety, with the use of medicine, plaintiff’s symptoms were “pretty much in remission.”
With the benefit of medication, the evidence indicates that she would no longer be considered
disabled under the PWDCRA. Nevertheless, we agree with plaintiff that her hospitalization and
the limitations temporarily ordered by her doctor support a finding that she has a history of being
disabled. Furthermore, the crux of much of plaintiff’s argument is that she was penalized for the
manner in which defendant accommodated those restrictions, and in light of the evidence that
she informed various individuals at defendant that she was disabled, there is at least a question of
fact whether defendant regarded her as being disabled.

        Even if plaintiff were disabled, however, the PWDCRA prohibits various adverse
employment actions “based on physical or mental disabilities that substantially limit a major life
activity of the disabled individual, but that, with or without accommodation, do not prevent the
disabled individual from performing the duties of a particular job.” Peden, 470 Mich at 204
(emphasis added). Plaintiff alleges two adverse actions: she was required to undergo a more
rigorous physical examination than she had been required to undergo in previous years, and she
was passed over for several promotion opportunities, which in turn she contends was because she
had been required to place “NA” in her schedule to effectuate the temporary restrictions. We are
unable to discern how the physical examination, even if it was in fact more rigorous, constitutes
any of the conduct prohibited by MCL 37.1202.

        The significance of the “NA” notations is that defendant uses the number thereof as a
performance measurement, and plaintiff alleges that other employees had not been required to
report as NA for various reasons of unavailability. Plaintiff contends that one of the supervisors
advised her that a large number of NAs looks unfavorable. That is apparently true, but the

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evidence unequivocally established that in evaluating plaintiff’s candidacy for the promotions,
her NAs for the period of her medical restriction were excluded from consideration. We are
unable to discern how any consideration given to plaintiff’s NAs after her release from
restriction would tend to constitute discrimination because of any disability. Plaintiff contends
that there is a question of fact whether her NAs for that period were genuinely not considered,
but other than essentially attacking the credibility of witnesses for defendant, plaintiff fails to
demonstrate anything more than a possibility that a jury might choose to discredit them. The
mere possibility that a claim or defense could prevail at trial is insufficient. Maiden, 461 Mich at
120-121.

        It is agreed by the parties that plaintiff and the first person who was promoted over her
were “close.” Defendant broke the tie on the basis of various other performance metrics that
plaintiff believes to be sufficiently ill-considered as to be nonsensical. We find persuasive and
agree with the Seventh Circuit that, as a general matter, employers are permitted to make foolish,
counterproductive, or otherwise generally bad business decisions. See Debs v Northeastern
Illinois Univ, 153 F 3d 390, 396 (CA 7, 1998). The dubiousness of an employer’s business
judgment does not create a question of fact whether an articulated non-discriminatory reason is
pretextual. Town v Michigan Bell Tel Co, 455 Mich 688, 703-707; 568 NW2d 64 (1997). The
PWDCRA is not “a statute designed to enable judges to second-guess, or to improve upon, the
business judgments of employers.” Peden, 470 Mich at 218. We are unpersuaded that plaintiff
has even articulated a prima facie case of discrimination beyond her subjective disagreement
with defendant’s reasons for declining to award her the promotions. In effect, plaintiff merely
believes that defendant exercised poor judgment in assessing the relative worth of the candidates.
Plaintiff may, in fact, be correct, but the evidence does not show that defendant’s judgment was
motivated by a discriminatory animus.

         Plaintiff also contends that she was retaliated against after she filed a complaint with the
United States Equal Employment Opportunity Commission (EEOC). In the complaint she
indicated that she had been discriminated against because of her disability, including defendant’s
use of NAs during her period of accommodation in deciding not to promote her. We note that
the PWDCRA’s anti-retaliation provision prohibits retaliation or discrimination based on, in
relevant part, filing a complaint “under this act.” MCL 37.1602(a). The EEOC determination
letter references only the ADA, not the PWDCRA. We nevertheless give plaintiff the benefit of
the doubt that she made a relevant complaint; furthermore, there is at least enough evidence to
create a genuine question of fact whether defendant was aware of that complaint, at least in
general terms. A prima facie retaliation case also requires “a causal connection between the
protected activity and the adverse employment action.” Aho v Dep’t of Corrections, 263 Mich
App 281, 288-289; 688 NW2d 104 (2004).

        As discussed, a display of poor business judgment is insufficient to establish a wrongful
motive. Likewise, a mere temporal coincidence is also insufficient, especially where the
evidence shows that those responsible for the hiring decision did not appear overly concerned by
the protected activity. West v General Motors Corp, 469 Mich 177, 186-187; 665 NW2d 468
(2003). The employees of defendant all testified to the general effect that they were unaware of
plaintiff’s complaints, did not discuss them, or treated them as essentially routine. Whether or
not it is a wise policy, or even a fair one, rejecting a candidate on the basis of giving a poor
interview is routine.

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        Plaintiff’s frustration is entirely understandable. However, the evidence plaintiff
provides simply does not establish a causal link between defendant’s decisions not to promote
her and either her disabilities, if any, or her complaints, if they can be deemed relevant to the
PWDCRA. Her questions of fact pertain entirely to exercises of possibly poor business
judgment on defendant’s part, but for purposes of the instant suit, those are not material
questions of fact. We appreciate that there is some unfairness in this, the unfortunate fact is that
it is normal to base hiring decisions as much on whether the interviewer happens to like the
interviewee as on objective merit, however that merit is evaluated. Perhaps it should not be so,
but that is outside the scope of the PWDCRA or, for that matter, the courts. We find no genuine
question of material fact whether defendant impermissibly discriminated against plaintiff on the
basis of disability or filing a complaint.

       Affirmed.

                                                             /s/ Jane E. Markey
                                                             /s/ Amy Ronayne Krause
                                                             /s/ Mark T. Boonstra




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