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STATE OF MICHIGAN COURT OF APPEALS

KELLI BALL RAKOZY, Plaintiff-Appellant, v ADVANCE PRINT & GRAPHICS, INC, and GARY M. HAMBELL, Defendants-Appellees.

UNPUBLISHED November 29, 2011

No. 300880 Washtenaw Circuit Court LC No. 10-000394-CZ

Before: TALBOT, P.J., and FITZGERALD and MARKEY, JJ. PER CURIAM. Plaintiff appeals by right the trial court's order granting summary disposition to defendants with regard to plaintiff's action alleging defendants violated the Persons With Disabilities Civil Rights Act (PWDCRA), MCL 37.1101 et seq., by refusing to hire or interview her because of her hearing disability. Because plaintiff did not create a material fact dispute that an open, available job or position existed "that is unrelated to [plaintiff's] ability to perform the duties of [the] particular job or position," MCL 37.1202(1)(a), the trial court properly granted defendants summary disposition. Peden v Detroit, 470 Mich 195, 198, 222; 680 NW2d 857 (2004). Accordingly, we affirm the trial court's order. I. SUMMARY OF FACTS & PROCEEDINGS Defendant Advance Print & Graphic, Inc. (APG), is a small firm owned and managed by its president and sole shareholder, defendant Gary M. Hambell (Hambell). APG employed a staff of two junior level graphics designers and provided printing services to various businesses. APG's largest client was Borders Bookstore in Ann Arbor. In 2008, APG added another large client, Roger Penske. Hambell wanted to transition the business to digital printing and expand its product line to offer Internet-based printing services. To facilitate growing the business, Hambell envisioned the creation of a new position of senior graphics designer to supervise the junior staff, develop new product lines, and train APG's clients in their use. Hambell interviewed three candidates in June and July 2008, including plaintiff, for the potential position of senior graphics designer that he envisioned creating. On June 25, 2008, on the basis of plaintiff's resume he had acquired in some manner, Hambell emailed plaintiff: "I have reviewed your resume and may have an opportunity in our graphics department. Please call me to set up an interview." Plaintiff did not call but responded by email, and after further -1-

emails, an interview was scheduled for the next day. Plaintiff did not inform Hambell that she was deaf and may need an interpreter. Hambell terminated the interview when he could not understand plaintiff's effort to verbally communicate with him. Hambell prepared a written memorandum of the interview, which reads as follows: To: File Regarding: Interview with Kelli Rakozy This afternoon I interviewed Kelli Rakozy. I noticed that when we met in the lobby that she had a hearing disability. This was never disclosed prior to our interview nonetheless, I proceeded to interview Kelli. Due to her disability I had to end the interview because of my inability to be able to verbally understand her in any way. I told her that this position required face to face verbal discussions with our clients, and that since I was having trouble communicating with her, that our clients may have similar problems. I ended the interview. She became very upset and said that she was going to sue the company. If Kelli had revealed that she had a disability I would have made plans to have a sign language representative or another means of communication available so that the Interview could have been completed. Her aggressive and punitive personality would not have made her a good choice for a graphic designer in a short-run commercial print environment. It is not disputed that the senior graphics designer position that Hambell envisioned was never filled. Because of a dramatic decrease in APG's business in the second half of 2008, the idea of creating the new position was abandoned. Not only did new business with the Penske account fail to develop as hoped, but business from Borders fell precipitously as well. In addition, there was no increased productivity from new software. Hambell testified that with respect to the anticipated new business, "that volume didn't come and, unfortunately, the software program wasn't what we thought it was going to be, and at that time the project went cold." In addition to abandoning the idea of the proposed new position, the economic downturn also resulted in the laying off of two existing APG staff (not the junior graphics designers). Plaintiff filed her complaint in April 2010 alleging defendants violated the PWDCRA by "discriminatorily refus[ing] to interview and/or hire [plaintiff] for the position in APG's graphic design department because she is deaf." After discovery,1 defendants moved for summary

A hearing impaired interpreter was required for plaintiff's deposition, and the reporter deemed unintelligible more than one hundred of plaintiff's verbal responses.

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disposition contending under the undisputed facts plaintiff could not establish a prima facie case of discrimination because of a disability. On October 13, 2010, the trial court heard the parties' arguments and ruled from the bench. The court's order was entered the same day granting defendants' motion for summary disposition "for the reasons stated on the record." At the motion hearing, the trial court stated that defendants argued that plaintiff could not succeed on her PWDCRA claim because she interviewed for a mere employment opportunity or a potential position, not an actual, open and vacant position. The Court noted that plaintiff tacitly agreed, based on her statement that defendant set up the interview "`because he believed that her qualifications would fit a potential position.'" The court agreed with defendants' position, observing that plaintiff made no argument, nor cited any law to the contrary. The trial court stated the elements of plaintiff's PWDCRA claim and discussed the evidence that plaintiff submitted to establish her prima facie case, opining: In an effort to establish that her hearing disability is not related to her ability to perform the duties of graphic designer--of the graphic designer position at issue, Plaintiff offers affidavits and other documentary evidence demonstrating she is well-qualified and capable of performing the job duties of graphic design work. Under MCL 37.1103[d](i)(a), the duties of a particular job are not determined solely by reference to the employer's definition of the job. [Citing Ankerson v MK-Ferguson Co, 191 Mich App 129, 140; 477 NW2d 465 (1991).] However, Plaintiff must submit proof that her disability is unrelated to the essential duties of this particular job. [Citing Koester v Novi, 213 Mich App 653, 661-662; 540 NW2d 765 (1995), aff'd in part and rev in part on other grounds 458 Mich 1 (1998).] Here, the job description does not contradict Defendants' assertion that Plaintiff's disability is not unrelated to the particular job opportunity at issue. The evidence submitted by Defendant shows that quote, "strong, verbal communication skills," unquote, are an essential and central element of this particular employment opportunity. The job description provides that the candidate quote, "should be prepared to meet and/or call customers at any time," unquote, and quote, "is a central communication point," unquote to ensure the delivery of high quality product. The trial court then summarized its ruling granting summary disposition to defendants: The Court finds no genuine issue here for a jury to decide. The undisputed facts show that this incident was related to an exploration of a job opportunity, that there was not a quote, "posted, open and available position," unquote, that Plaintiff's disability was not unrelated to the job opportunity as determined in accordance with Defendants' properly applied business judgment and that Plaintiff has failed to refute Defendants' legitimate, non-discriminatory business reason--a significant decrease in business--as the reasons for Defendants' decision to discontinue the job opportunity. Because Plaintiff has

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failed to show a prima facie case of employment discrimination, for the reasons stated by Defendant, Defendants' Motion is granted. Plaintiff now appeals by right. II. STANDARD OF REVIEW This Court reviews de novo a trial court's decision regarding a motion for summary disposition. Peden, 470 Mich at 200-201. A motion brought under MCR 2.116(C)(10) tests the factual support of a claim. When the evidence viewed in a light most favorable to the nonmoving party discloses that there is no genuine issue concerning any material fact and the moving party is entitled to judgment as a matter of law, the trial court may grant summary disposition. Hazle v Ford Motor Co, 464 Mich 456, 461; 628 NW2d 515 (2001). III. ANALYSIS The framework of the PWDCRA with respect to plaintiff's claim provides: (1) Except as otherwise required by federal law, an employer shall not: (a) Fail or refuse to hire, recruit, or promote an individual because of a disability or genetic information that is unrelated to the individual's ability to perform the duties of a particular job or position. [MCL 37.1202(1)(a).] The PWDCRA defines "disability" and "unrelated" as follows: (d) Except as provided under subdivision (f),[2] "disability" means 1 or more of the following: (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) 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. ***

This subsection, which relates to disabilities caused by use of alcohol or controlled substances, is not relevant to this case.

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(l) "Unrelated to the individual's ability" means, with or without accommodation, an individual's disability does not prevent the individual from doing 1 or more of the following: (i) For purposes of article 2, performing the duties of a particular job or position. [MCL 37.1103(d)(i)(A) and (l)(i).] Although plaintiff's complaint alleges defendants refused to "hire" or "interview" her because she is deaf, she now argues defendants failed to "recruit" her because of her disability. MCL 37.1202(1)(a). The undisputed evidence shows that defendants recruited and interviewed plaintiff for the possible position of senior graphics designer. Plaintiff does not seriously dispute legitimate business reasons resulted in the potential position's not being created or filled. Instead, she contends defendants terminated their recruitment of her before that decision was made. To establish a prima facie case of discrimination under the statute, a plaintiff must show that (1) [she] is `disabled' as defined by the statute, (2) the disability is unrelated to the plaintiff's ability to perform the duties of a particular job, and (3) the plaintiff has been discriminated against in one of the ways set forth in the statute. [Chiles v Machine Shop, Inc, 238 Mich App 462, 473; 606 NW2d 398 (1999).] The first of the trial court's reasons for granting defendants summary disposition was the court's ruling that there must be an open and available "particular job or position" to support an actionable claim of discrimination because of a disability under

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