Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED MAY 1, 2001
CLAUDIA MICHALSKI and MICHAEL MICHALSKI,
Plaintiffs-Appellees,
v No. 114107
REUVEN BAR-LEVAV, M.D. and DR.
REUVEN BAR-LEVAV & ASSOCIATES, P.C.,
Defendants-Appellants.
____________________________________
BEFORE THE ENTIRE BENCH
WEAVER, J.
Following a motion for summary disposition brought
pursuant to MCR 2.116(C)(10), plaintiff's Handicappers’ Civil
Rights Act claim was dismissed by the circuit court.1 The
Court of Appeals reversed. The issue before this Court is
1
In 1998, after plaintiff filed her claim, the name of
the act was changed to the Persons with Disabilities Civil
Rights Act. 1998 PA 20, MCL 37.1101; MSA 3.550(101). This
opinion will refer to the act as the Handicappers’ Civil
Rights Act.
whether the Court of Appeals properly concluded that plaintiff
presented sufficient evidence to create a question of fact
with respect to whether defendant regarded her as having a
determinable physical or mental characteristic that
substantially limited one or more of her major life
activities. We hold that plaintiff did not present sufficient
evidence to create such a question, and we reverse the
judgment of the Court of Appeals on this issue.
I
On September 1, 1995, plaintiff signed an employment
contract with defendant to begin work as an executive
secretary on September 11, 1995.2 On September 4, 1995,
plaintiff experienced numbness and tingling on her left side,
which persisted for four days. She was seen by her family
doctor, who referred her to Dr. Green, a neurologist.
Plaintiff was able to begin work as scheduled. On September
23, 1995, plaintiff saw Dr. Green, who told her he suspected
multiple sclerosis, but was unable to make a positive
diagnosis at that time. Plaintiff testified at her deposition
that she told defendant and others at the office about this
tentative diagnosis. Plaintiff maintains that, after she
2
For convenience, we will refer to Claudia Michalski as
the “plaintiff” and Reuven Bar-Levav as the “defendant.”
Additionally, we note that we have been informed that
defendant Bar-Levav is deceased. However, there has been no
request to substitute his estate as a party.
2
revealed her condition, defendant undertook a course of
harassment, which she attributed to his perception of her
medical condition.3
Dr. Green saw plaintiff again on October 28, 1995. At
this time, plaintiff had no symptoms of multiple sclerosis,
and Dr. Green indicated on her medical record that she was
"doing fine, feels great.” Plaintiff continued to work
without incident until December 28, 1995, when she left work,
experiencing a loss of vision in one eye. She was seen by Dr.
Green, who diagnosed multiple sclerosis. She was hospitalized
for three days, and her vision improved after treatment.
However, she did not return to work.
Plaintiff brought this action alleging a violation of the
Handicappers’ Civil Rights Act (HCRA) and a claim for
intentional infliction of emotional distress.4 After
discovery, defendant moved again for summary disposition
pursuant to MCR 2.116 (C)(10).5 The circuit court granted the
3
Defendant maintained that he was unaware of her medical
condition until after she left work on December 28, 1995.
4
The circuit court granted summary disposition for
defendant on the intentional infliction of emotional distress
count. The Court of Appeals affirmed that ruling, and no
issue regarding this claim is involved in this appeal.
5
Defendant first moved for summary disposition on
December 9, 1996. The trial court initially denied
defendant’s motion regarding the HCRA claim without prejudice.
(continued...)
3
motion, concluding:
[T]here is no evidence that the condition that
Plaintiff was perceived to have was a condition
which substantially limits one or more for [sic]
major life activities. And no evidence to suggest
that the Defendant had any knowledge that one or
more of the major life activities was limited.
On January 26, 1999, the Court of Appeals issued a two
to-one decision affirming the dismissal of the intentional
infliction of emotional distress count, but reversing the
dismissal of plaintiff's handicap discrimination claim because
it believed that plaintiff had presented sufficient evidence
to establish a prima facie case of handicap discrimination.6
Relying on Sanchez v Lagoudakis,7 plaintiff argued that one
could find that her condition was a handicap as defined by the
statute because the HCRA prohibits discrimination, even when
an individual does not exhibit symptoms of a handicap. A
majority of the Court of Appeals agreed.
Noting that under Sanchez, the focus is on the employer’s
conduct and belief or intent, and not merely on the employee’s
condition, the majority reasoned that the mere fact that
5
(...continued)
Following the completion of discovery, defendant filed a
renewed motion for summary disposition on April 11, 1997.
6
Unpublished opinion per curiam, issued January 26, 1999
(Docket No. 204033).
7
440 Mich 496; 486 NW2d 657 (1992); Sanchez v Lagoudakis
(On Remand), 217 Mich App 535; 552 NW2d 472 (1996), rev’d on
other grounds After Remand 458 Mich 704; 581 NW2d 257 (1998).
4
plaintiff was symptom free should not preclude her cause of
action. The Court of Appeals explained that an “individual
with multiple sclerosis can lead a normal life until the next
exacerbation, which occurs with varying frequency and degree.”
Similarly, individuals with handicaps such as epilepsy and
asthma may have periods of time where they are symptom free.
Although plaintiff was not definitively diagnosed with
multiple sclerosis, the Court of Appeals reasoned that
applying Sanchez, in which the defendant based his employment
decision on rumors that the plaintiff had AIDS, there was
sufficient evidence to establish that in the present case,
defendant may have regarded plaintiff as handicapped. The
Court of Appeals noted that plaintiff's deposition testimony
established that she informed defendant from the beginning of
her employment that her doctors suspected she had multiple
sclerosis. Further, plaintiff periodically took some time off
during September and October 1995 to undergo testing for
multiple sclerosis and to receive treatment to lessen the side
effects of some of the testing procedures. Therefore, the
Court of Appeals concluded that the trial court had erred in
granting summary disposition in defendant's favor.
Judge Whitbeck dissented. His dissent focused on the
fact that the definition of "handicap" was altered by a 1990
5
amendment to the HCRA8 to require that the physical or mental
characteristic in question substantially limit one or more
major life activities of the individual. The version of the
statute in effect at the time of the events in Sanchez did not
include this requirement; thus, it was improper for the
majority to rely on that case as support for its conclusion.
The dissent reasoned that, under the applicable version of the
HCRA, the plain language of the statute required defendant to
perceive plaintiff as having a characteristic that
substantially limited a major life activity. Because
plaintiff did not present any evidence that defendant regarded
her as having a condition that substantially impaired a major
life activity, the dissent concluded that summary disposition
was properly granted.
This Court granted leave to appeal. 461 Mich 1020
(2000).
II
A motion for summary disposition brought pursuant to MCR
2.116(C)(10) tests the factual support of a plaintiff's claim
and is subject to de novo review. Smith v Globe Life Ins Co,
460 Mich 446, 454; 597 NW2d 28 (1999). In reviewing a motion
for summary disposition under MCR 2.116(C)(10), the court
considers the pleadings, affidavits, and other documentary
8
See 1990 PA 121.
6
evidence filed in the action or submitted by the parties in
the light most favorable to the nonmoving party. The motion
is properly granted if the documentary evidence presented
shows that there is no genuine issue with respect to any
material fact and the moving party is therefore entitled to
judgment as a matter of law.
The HCRA provides that "[a]n employer shall not . . .
[d]ischarge or otherwise discriminate against an individual
with respect to compensation or the terms, conditions, or
privileges of employment, because of a handicap[9] that is
unrelated to the individual's ability to perform the duties of
a particular job or position." MCL 37.1202(1)(b); MSA
3.550(202)(1)(b). To establish a prima facie case of handicap
discrimination, a plaintiff must demonstrate that (1) he is
handicapped as defined by the HCRA, (2) the handicap is
unrelated to his ability to perform the duties of his job, and
(3) he was discriminated against in one of the ways described
in the statute. Chmielewski v Xermac, Inc, 457 Mich 593, 602;
580 NW2d 817 (1998).
The act, as amended in 1990, defines handicap for
employment related purposes as follows:
(i) A determinable physical or mental
9
The 1998 amendments of the act substituted the word
“disability” for the word “handicap” throughout the act. 1998
PA 20.
7
characteristic of an individual, which may result
from disease, injury, congenital condition of
birth, or functional disorder, if the
characteristic:
(A) For purposes of article 2, 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 or substantially limits
1 or more of the major life activities of that
individual and is unrelated to the individual's
qualifications for employment or promotion.
* * *
(ii) A history of a determinable physical or
mental characteristic described in subparagraph
(i).
(iii) Being regarded as having a determinable
physical or mental characteristic described in
subparagraph (i). [MCL 37.1103(e); MSA
[10]
3.550(103)(e).]
Relying on subsection (iii), plaintiff argued that defendant
undertook a course of harassment because he perceived her as
handicapped. Thus, resolution of this matter requires us to
construe this subsection of the statute.
Where statutory language is clear and unambiguous, its
plain meaning reflects legislative intent, and judicial
construction is not permitted. McKenzie v Auto Club Ins
Ass'n, 458 Mich 214, 217; 580 NW2d 424 (1998). In this case,
10
Following the 1998 amendments to the act, the substance
of MCL 37.1103(e); MSA 3.550(103)(e) is now found in MCL
37.1103(d); MSA 3.550(103)(d). Apart from substituting the
word “disability” for the word “handicap,” the subsections are
identical.
8
we find that the statutory language is clear and unambiguous.
Considering the statute in its entirety, to qualify for
protection under subsection (iii), an employee must be
“regarded as having a determinable physical or mental
characteristic,” as that characteristic is described in
subsection (i) (emphasis added). Subsection (i)(A) describes
the determinable physical or mental characteristic as one that
“substantially limits 1 or more of the major life activities
of that individual . . . .” (emphasis added). The
characteristic must also be unrelated either to “the
individual’s ability to perform the duties of a particular job
or position” or to “the individual’s qualifications for
employment or promotion.”
Thus, while a plaintiff need not actually have a
determinable physical or mental characteristic, to qualify as
handicapped under subsection (iii), the plain statutory
language does require that the plaintiff prove the following
elements: (1) the plaintiff was regarded as having a
determinable physical or mental characteristic; (2) the
perceived characteristic was regarded as substantially
limiting one or more of the plaintiff’s major life activities;
and (3) the perceived characteristic was regarded as being
unrelated either to the plaintiff’s ability to perform the
duties of a particular job or position or to the plaintiff’s
9
qualifications for employment or promotion.11 Only the first
two elements are at issue in this case.
We agree with the Court of Appeals dissent that reliance
on Sanchez as support for the conclusion reached by the Court
of Appeals majority is misplaced. The version of the HCRA in
effect at the time of the events in Sanchez contained no
requirement that the determinable physical or mental
characteristic substantially limit a major life activity.
Thus, under the pre-1990 version of the statute, a plaintiff
only needed to be regarded as having a determinable physical
or mental characteristic.12
Finally, we note that the phrase “regarded as having,”
found in subsection (iii), and the phrases “substantially
limits” and “is unrelated” found in subsection (i)(A), all
appear in the present tense. Depending on whether a plaintiff
is proceeding under the “actual” or “regarded as” portions of
the statute, because of the Legislature’s choice of present
tense language in defining the term handicap, we must evaluate
the physical or mental characteristic at issue either (1) as
11
Contrary to the dissent’s assertion, this test does not
require plaintiff to demonstrate that she actually exhibited
symptoms typical of multiple sclerosis.
12
Although the dissent purports to be giving effect to
every phrase, clause, and word of the statute, its analysis
essentially reads the “substantially limits” requirement out
of the statute.
10
it actually existed at the time of the plaintiff’s
employment,13 or (2) as it was perceived at the time of the
plaintiff’s employment.
Thus, to qualify for coverage under subsection (iii),
plaintiff must be regarded as presently having a
characteristic that currently creates a substantial limitation
of a major life activity.14 In this case, plaintiff did not
13
See Chmielewski, supra. The issue presented in
Chmielewski was whether, in determining if a person was
handicapped under the act, “the trier of fact should assess
the individual without the benefit of medication or other
mitigating measures, or if it should assess the individual’s
condition as it presently exists with the benefit of such
measures.” Id. at 595. Focusing on the statute’s requirement
that the individual’s condition substantially limits a major
life activity, the Court held that it must examine the
plaintiff’s condition as it exists, with the benefit of his
medication. Id. at 606-607.
Assessing an actual handicap at the time of employment is
consistent with the federal approach under the Americans with
Disabilities Act (ADA). In Sutton v United Air Lines, Inc,
527 US 471, 482-483; 119 S Ct 2139; 144 L Ed 2d 450 (1999),
the Court stated that “[a] ‘disability’ exists only where an
impairment ‘substantially limits’ a major life activity, not
where it ‘might,’ ‘could’ or ‘would’ be substantially limiting
. . . .” Because of the similarities between the HCRA and the
ADA, analogous federal precedent may be persuasive, although
not necessarily binding. Chmielewski, supra at 601-602.
14
The dissent criticizes our focus on the present-tense
language of the statute. We remind the dissent that while it
may seem incongruous that the HCRA does not provide protection
against discrimination on the basis of a possibility that one
might become handicapped in the future, our duty is to apply
the law. As the author of the dissent observed in her
discussion concerning the scope of the Whistleblowers’
Protection Act:
(continued...)
11
present any evidence to create a question of fact regarding
whether defendant regarded her as having a characteristic that
substantially limited a major life activity at the time she
was his employee. She presented no evidence that Dr. Bar-
Levav regarded her as unable to perform basic tasks of
ordinary life. Indeed, from all indications, she was
physically capable of performing her job duties. At most,
plaintiff presented evidence that she informed defendant that
she had been tentatively diagnosed with multiple sclerosis and
that he believed that this might substantially limit her major
life activities in the future. Thus, the trial court properly
granted summary disposition on plaintiff's claim that she was
regarded as handicapped under the HCRA.
Although plaintiff also argued in the Court of Appeals
that she was actually handicapped pursuant to subsection (i)
14
(...continued)
The Legislature could have defined protected
activity to include confrontation, as in the False
Claims Act. It could have allowed employees to
recover without a showing of reporting or being
about to report. It did neither. Instead, the
Legislature defined protected activity as reporting
a violation or being about to report one. The
Legislature can and may rewrite the statute, but we
will not do so. [Chandler v Dowell Schlumberger,
Inc, 456 Mich 395, 405-406; 572 NW2d 210 (1998).]
Consequently, while the Legislature may, and perhaps should,
amend the HCRA to include within its scope of protection
discrimination based on the possibility of a future handicap,
we decline to do so by construing the HCRA in a manner
inconsistent with its plain language.
12
of the HCRA, the Court of Appeals did not address this
argument. Therefore, we remand this case to the Court of
Appeals for consideration of plaintiff’s actual handicap
theory.
III
In conclusion, we find that, in order to succeed on a
claim brought under subsection (iii), the plain language of
the statute requires an employee prove (1) that the employee
was regarded as having a determinable physical or mental
characteristic, (2) that the perceived characteristic was
regarded as substantially limiting one or more of the
plaintiff’s major life activities, and (3) that the perceived
characteristic was regarded as being unrelated either to the
plaintiff’s ability to perform the duties of a particular job
or position or to the plaintiff’s qualifications for
employment or promotion.
Moreover, depending on whether the claim is brought under
subsection (i) (“actual” handicap) or subsection (iii)
(“perceived” handicap), because of the present-tense language
used in the statute, courts must evaluate the physical or
mental characteristic at issue either (1) as it actually
existed at the time of the plaintiff’s employment, or (2) as
it was perceived at the time of the plaintiff’s employment.
Because plaintiff failed to present sufficient evidence
13
to create a question of fact regarding whether the defendant
regarded her as having a characteristic that substantially
limited one or more of her major life activities, we reverse
the Court of Appeals and reinstate the trial court’s ruling
granting summary disposition in defendant’s favor on
plaintiff’s claim that she was regarded as handicapped
pursuant to subsection (iii). We remand to the Court of
Appeals for consideration of plaintiff’s actual handicap
theory.
CORRIGAN , C.J., and TAYLOR , YOUNG, and MARKMAN , JJ.,
concurred with WEAVER , J.
14
S T A T E O F M I C H I G A N
SUPREME COURT
CLAUDIA MICHALSKI and MICHAEL J.
MICHALSKI,
Plaintiff-Appellees,
v No. 114107
REUVEN BAR-LEVAV, M.D., and
DR. REVEN BAR-LEVAV &
ASSOCIATES, P.C.,
Defendant-Appellants.
____________________________________
KELLY, J. (dissenting).
I disagree with the majority's conclusion that the trial
court correctly granted defendants' motion for summary
disposition. Plaintiffs have submitted sufficient evidence to
create a genuine issue of fact whether Dr. Bar-Levav
discriminated against Ms. Michalski because he thought she was
handicapped. Accordingly, I dissent from the majority's
opinion.
Plaintiffs brought their claim pursuant to the Michigan
Handicappers' Civil Rights Act (HCRA).1 The HCRA prohibits
1
MCL 37.1101 et seq.; MSA 3.550(101) et seq. The HCRA
has been renamed the Persons With Disabilities Civil Rights
(continued...)
employment discrimination on the basis of a handicap. Its
definition of a handicap includes "[b]eing regarded as having
a determinable physical or mental characteristic" that
"substantially limits 1 or more of the major life activities
of that individual . . . ." MCL 37.1103(e); MSA
3.550(103)(e). When an employer discriminates against an
employee because the employer perceives the employee as
handicapped, the employer is in violation of the HCRA. See
Sanchez v Lagoudakis, 440 Mich 496; 486 NW2d 657 (1992), (On
Remand) 217 Mich App 535; 552 NW2d 472 (1996), rev'd on other
grounds after remand 458 Mich 704; 581 NW2d 257 (1998).
In interpreting the scope of subsection (iii) of the HRCA
using a narrow "present tense" standard, the majority gives it
a meaning that the Legislature could not have intended. This
Court has declined to embrace a literal construction of
statutory language where such literalism would produce
unreasonable and unjust results inconsistent with the purpose
of the statute. DiBenedetto v West Shore Hospital, 461 Mich
394, 403-404; 605 NW2d 300 (2000). In disregard of this
principle, the majority concludes that, to discriminate under
the statute, an employer must perceive that its employee has
a condition that, at the time, substantially limits a major
1
(...continued)
Act. See 1998 PA 20.
2
life activity. Under this interpretation, if the employer
discriminated against the employee for having a condition that
would develop into a handicap in the future, it would not
violate subsection (iii). No violation of the act would occur
if the employer discriminated against the employee because the
employer perceived that the employee had a condition that
presently was becoming a handicap.
The majority notes that the HRCA was amended in 1990.
The amendments effected a slight change in the definition of
a disability, but did not alter the well-settled purpose of
the act. They did nothing to change the legislative intent or
the breadth of the "regarded as" prong as stated in the act
and described in Sanchez, supra. Under Sanchez, this Court
determined that a plaintiff need not display symptoms of a
handicap to be protected by the act. Rather, subsection (iii)
is violated if an employer discriminates because it believes
the employee is handicapped, even if the belief is erroneous.
The majority's "present tense" rendering of subsection
(iii) whittles the "regarded as" prong down to a nubbin. It
leaves a subsection (iii) claim virtually indistinguishable
from a claim under subsection (i).
Subsection (i) extends protection to those who have an
"actual handicap." In order to prevail under that subsection,
an employee must show that he suffers from the symptoms of an
3
actual disease that impedes work. In addition, the employer
must be shown to have based an adverse employment decision on
that fact. Subsection (iii) addresses situations where an
employer is erroneous in believing that the employee has a
disability. But, under the majority's standard, what would a
plaintiff have to prove to recover under subsection (iii)?
For example, Ms. Michalski could not succeed merely by
showing that Dr. Bar-Levav took an adverse action against her
because (1) he perceived that she was in a dormant stage of MS
and that (2) his perception was that she was becoming
handicapped. Under the majority's "present tense" test, she
would have to show that (1) she actually exhibited symptoms
typical of MS, (2) her employer perceived them as limiting her
life activities, and (3) acted on that perception by taking
adverse action against her.
Additionally, despite being required to prove the
manifest existence of actual symptoms, to succeed under
subsection (iii), plaintiff would have to show an absence of
the perceived handicapping disorder. Indeed, if she actually
suffered from the handicap, recovery would be available under
subsection (i), obviating any need for subsection (iii).
Hence, the majority's holding leaves such a narrow avenue for
recovery under subsection (iii) that it renders the "regarded
as" prong of the HCRA a virtual dead letter.
4
Courts must, as far as possible, give effect to every
phrase, clause, and word of a statute. People v Borchard-
Ruhland, 460 Mich 278, 285; 597 NW2d 1 (1999). Moreover,
courts should avoid unnecessarily reading any portion of a
statute out of existence because of rigid adherence to the
doctrines of literalism and plain meaning. See, e.g., Lane v
Pena, 518 US 187, 199-200; 116 S Ct 1092; 135 L Ed 2d 486
(1996) (rejecting petitioner's invitation to read certain
language out of the federal Rehabilitation Act); Mason v Wayne
Co Bd of Comm'rs, 447 Mich 130, 137; 523 NW2d 791
(1994)(declining to "read out of existence" the word
"crosswalks" from the highway exception to Michigan's
governmental immunity statute); Nalepa v Plymouth-Canton
Community School Dist, 207 Mich App 580, 588; 525 NW2d 897
(1995)(rejecting an interpretation that "would read subsection
5 of the governmental immunity act out of the statute
entirely").
The Legislature could not have intended the literal
"present tense" interpretation embraced by the majority. It is
in derogation of established principles of statutory
construction.
A better view would recognize that it is immaterial
whether an employer who perceives an employee as having a
substantial limitation, believes it to be "present" or
5
"future." If the employer discriminates because it perceives
the employee is handicapped or is becoming handicapped, it
violates subsection (iii) of the act. Thus, subsection (iii)
should be interpreted to contemplate a finding of
discrimination for adverse acts against an employee arising
from (1) an employer's perception of a handicap and (2) the
perception that the handicap threatens work, even in the
future.
The definition of "handicap" used in the HCRA is similar
to that used in the federal Americans With Disabilities Act
(ADA). ADA case law and regulations can be guides for us in
interpreting the HCRA. See Stevens v Inland Waters, Inc, 220
Mich App 212, 216-217; 559 NW2d 61 (1996). In Sutton v United
Airlines,2 the United States Supreme Court stated:
There are two apparent ways in which
individuals may fall within this statutory
definition:(1) a covered entity mistakenly believes
that a person has a physical impairment that
substantially limits one or more major life
activities, or (2) a covered entity mistakenly
believes that an actual, nonlimiting impairment
substantially limits one or more major life
activities. In both cases, it is necessary that a
covered entity entertain misperceptions about the
individual--it must believe either that one has a
-
substantially limiting impairment that one does not
have or that one has a substantially limiting
impairment when, in fact, the impairment is not so
limiting.
The Court then identified that an individual may fall
2
527 US 471, 489; 119 S Ct 2139; 144 L Ed 2d 450 (1999).
6
within the definition in another way. The ADA, it said, also
protects individuals "who are regarded as impaired and who, as
a result, are substantially limited in a major life activity."
Id. at 489, quoting School Bd of Nassau Co v Arline, 480 US
273, 284; 107 S Ct 1123; 94 L Ed 2d 307 (1987). In other
words "having such an impairment means . . . [having] a
physical or mental impairment that substantially limits major
life activities only as a result of the attitudes of others
toward such impairment . . . ." 29 CFR 1630.2(l)(2).
In the Michalskis' case, we are reviewing a trial court's
decision to grant summary disposition. We must consider all
the evidence and draw all reasonable inferences in the
Michalskis' favor. Bertrand v Alan Ford, Inc, 449 Mich 606,
617-618; 537 NW2d 185 (1995).
The majority has acknowledged that "[Ms. Michalski]
informed defendant that she had been tentatively diagnosed
with multiple sclerosis and that he believed that this might
substantially limit her major life activities in the future."
Federal law considers MS a physical impairment,3 and there is
no dispute here that it qualifies as a physical characteristic
under the Michigan statute.
Plaintiffs presented Dr. Bar-Levav's own testimony that
he recognized MS as a degenerative neurological disease with
3
See 45 CFR pt 84, app A.
7
an outcome that can be "very bad." They alleged that, after
learning that Ms. Michalski was suspected of having MS, Dr.
Bar-Levav routinely criticized and berated her work, speech
and appearance. When she complained of her symptoms, they
asserted, he told her that God was punishing her.
Considering the factual allegations and supporting
documents in a light most favorable to plaintiffs, I would
find that a jury could infer that defendant regarded Ms.
Michalski as handicapped. In addition, it could conclude that
she was not handicapped and that defendant acted on his faulty
perception in violation of the HCRA.
Plaintiffs created a genuine issue of material fact
concerning whether Dr. Bar-Levav erroneously regarded Ms.
Michalski as substantially limited in a major life activity
because he believed her afflicted with MS. Thus, I would
affirm the Court of Appeals reversal of the trial court grant
of summary disposition and would remand this case to the trial
court for further proceedings.
CAVANAGH , J., concurred with KELLY , J.
8