Michalski v. Bar-Levav

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