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RIADH SABBAGH, Plaintiff
vs.
THE GREAT ATLANTIC AND PACIFIC TEA CO. INC. and BORMAN'S INC., Defendants.
 
Case:
CASE NO. 96-CV-74389-DT
 
Location:
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
 
Date:
April 9, 1997, Decided
 
Court:
PATRICK J. DUGGAN, UNITED STATES DISTRICT Court
 
Author:
The Hon. Justice Patrick J. Duggan
 

This matter comes before Court on defendant's *fn1 motion for summary judgment. Defendant argues that plaintiff has failed to establish a prima facie case under either the Michigan Handicappers Civil Rights Act ("Handicappers Act") (Count I of plaintiff's complaint) or the Elliott-Larsen Civil Rights Act ("Elliott-Larsen")(Count II of plaintiff's complaint). Plaintiff argues that genuine issues of material fact remain on both counts.

BACKGROUND

From 1989, *fn2 until 1996, plaintiff was an hourly warehouse employee for defendant A&P and a member of the Teamsters Local 337. The terms and conditions of plaintiff's employment were governed by a Collective Bargaining Agreement. Before 1995 plaintiff worked in defendant's Borman Avenue facility. In January 1995 he began working at defendant's Burt Road facility.

The Farmer Jack/A&P Substance Abuse Policy negotiated between defendant and Teamsters Local 337 in 1993 provides that employees are prohibited from reporting to work or working under the influence of illegal drugs and alcohol. The Testing Program agreed upon with Local 337 allows the defendant to test present employees "whenever the Company has a reasonable suspicion based upon appearance conduct or job performance that an employee is under the influence of illegal/prohibited drugs or alcohol." (Defendant's Reply to Plaintiff's Response to Defendant's Motion for Summary Judgment Exhibit A p. 4). A blood alcohol level of 20 mg. per deciliter of blood (.02%), or higher, violates the Farmer Jack/A&P Substance Abuse Policy.

On August 30, 1995, Plaintiff was working in the frozen food area of the Burt Road Warehouse under the immediate supervision of John Gulecki. At the beginning of plaintiffs shift Gulecki suspected based on plaintiff's appearance that he had been drinking. Gulecki reported his observation to his supervisor the Perishable Food Warehouse Manager, Larry Daniel. Daniel called plaintiff and his union steward into his office where he observed plaintiff's eyes as red and glassy and noted his difficulty standing up without leaning against a wall. Daniel sent plaintiff to a clinic to be tested for presence of alcohol in his blood. At 9:16 a.m. a breathalyzer test indicated a blood alcohol level of .20%, ten times that which violates defendants' substance abuse policy. The plaintiff was immediately suspended.

The following day an informal grievance meeting was held during which at the Local 337's urging the Company agreed to return plaintiff to work pursuant to a "Final Agreement." Plaintiff a union steward and a company representative executed this Final Agreement which set forth the conditions upon which plaintiff was to be returned to work. The Final Agreement provided that for two years following the execution of the Agreement plaintiff could be randomly subjected to testing for illegal/prohibited drugs or alcohol and that any violation of company rules or policies including the policy against working under the influence would subject plaintiff to immediate discharge. (Defendant's Brief in Support of their Motion for Summary Judgment Exhibit G).

On June 10, 1996, Plaintiff was working in the meat cooler area of the warehouse under the immediate supervision of Chuck Osmond. (Deposition of Gary Sova p. 12). Upon punching in and beginning his shift Osmond observed plaintiff staggering and slurring his speech. Osmond reported to Daniel that he suspected plaintiff to be under the influence of alcohol. (Deposition of Larry Daniel pp. 21-23).

Plaintiff was at this time observed by union steward Gary Sova. Sova also thought plaintiff to be intoxicated. Sova attempted to convince plaintiff to punch out and leave the warehouse before he was caught having reported to work under the influence of alcohol. Before Sova was able to do this plaintiff was paged to Daniel's office. (Deposition of Gary Sova pp. 9-11). Daniel thought plaintiff to be under the influence of alcohol upon observing him and thus sent him to the clinic for a breathalyzer test. (Deposition of Larry Daniel p. 25). Plaintiff was administered two breathalyzer tests approximately 15 minutes apart. The tests were positive for presence of alcohol in plaintiff's blood at the level of .18% and .115% respectively. Because his blood alcohol level exceeded that which violates the company substance abuse policy plaintiff was immediately suspended. Plaintiff filed a grievance and at the grievance meeting held approximately one week after his suspension plaintiff's grievance was denied and employment was terminated. Subsequently the Union held a panel hearing to determine whether the Union would represent plaintiff in taking his grievance to arbitration. The Union declined to take plaintiff's grievance to arbitration.

Plaintiff's complaint alleges in Count I that he was terminated on the basis of a handicap in violation of the Handicappers Act, M.C.L.A. SEC. 37.1201 et seq. At the hearing on this motion held on April 3, 1997, plaintiff's Counsel clarified that the handicap plaintiff alleged in this Count was that of being perceived as an alcoholic. Plaintiff also alleges in Count II of his complaint that his termination was a result of discrimination on the basis of national origin. Defendant contends that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law on both Counts.

DISCUSSION

Standard of Review

Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P.56(c). Rule 56(c) mandates summary judgment against a party who after adequate time for discovery fails to establish the existence of an element essential to that party's case and on which that party bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 106 S. Ct.2548, 2552 91 L. Ed. 2d 265 (1986).

The moving party has the initial burden of showing "the absence of a genuine issue of material fact." Id. at 2553. Once the movant meets this burden the non-movant must come forward with specific facts showing that there is a genuine issue for trial. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 106 S. Ct.1348, 1356 89 L. Ed. 2d 538 (1986). To demonstrate a genuine issue the non-movant must present sufficient evidence upon which a jury could reasonably find for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 106 S. Ct.2505, 2512 91 L. Ed. 2d 202 (1986). "If the evidence is merely colorable or is not significantly probative summary judgment may be granted." Id. at 2511. Further the mere existence of some factual dispute between the parties will not defeat summary judgment; the factual dispute must be material to the outcome of the case. Id. at 2510. The substantive law identifies which facts are material. Id.

Handicappers Act

To establish a prima facie case under the Handicappers Act a plaintiff must demonstrate that; (1) he is handicapped; (2) his handicap is unrelated to his ability to perform his job; (3) he was discharged; and (4) there was some evidence that employer acted with discriminatory intent. Brown v. Sprint, 891 F. Supp.396 399 (E.D.Mich.1995); Dzierbowicz v. American Seating Co., 209 Mich.App. 130 530 N.W.2d 158 (1995), rev'd on other grounds, 450 Mich.969, 544 N.W.2d 473 (1996).

An employer may rebut a prima facie case by presenting a legitimate non-discriminatory reason for its action. Id.(citing Crittenden v. Chrysler Corp., 178 Mich.App.324, 331 443 N.W.2d 412 (1989)). Once the employer offers a legitimate non-discriminatory reason for its action it is the plaintiff's burden to show that the employer's reasons are merely a pretext for discrimination. Id.

Plaintiff argues in his response to defendant's motion that plaintiff is handicapped according to the statute because he was regarded as being an alcoholic. M.C.L.A. SEC. 37.1103(e)(iii). Nevertheless a determinable physical or mental characteristic caused by the use of an alcoholic liquor that prevents that individual from performing the duties of his job is not a handicap under the Handicappers Act. M.C.L.A. SEC. 37.1103(f)(ii). Plaintiff contends that an issue of fact remains regarding whether plaintiff was capable of performing the duties of his job.

Defendant has presented evidence indicating that on June 10 1996, plaintiff was unable to perform the duties of his job including testimony that he was staggering and that he nearly drove a work saver into the wall of the warehouse. (Deposition of Gary Sova pp. 17-18). Defendant also points to plaintiff's own testimony that he was dizzy and almost fell down while attempting to sweep the floor. (Plaintiff's Deposition pp. 175-176). Plaintiff must come forward with specific facts indicating that he was capable of performing his duties and thus that there is a genuine issue of material fact for trial . Plaintiff who has merely stated that a genuine issue of material fact exists has failed to present any facts which would create a genuine issue for a jury.

Plaintiff argues that a question of fact exists as to whether plaintiff was actually drunk on June 10, 1996, because defendant used a method of testing other than those to be used under the terms of the substance abuse policy. Defendant asserts that a breathalyzer test is a "blood testing method" under Section IV of the Substance Abuse Policy. Although this does present a question of fact it is not a material question of fact under the Handicappers Act. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment" Anderson supra at 2510. A question of fact of whether the test method relied upon by the defendants in determining that plaintiff had violated the company substance abuse policy was the proper test method under the terms of the substance abuse policy does not affect the outcome of this suit. That defendant may have used a test method other than that set forth in the substance abuse policy does not rebut its nondiscriminatory reason for discharging plaintiff.

Because there is no genuine issue of material fact and defendant is entitled to judgment as a matter of law its motion for summary judgment on plaintiff's Handicappers Act claim should be granted.

Elliott-Larsen

Plaintiff has alleged in his complaint that he was terminated by defendant based on his national origin in violation of the Elliot-Larsen Civil Rights Act. M.C.L.A. SEC. 37.2202. Defendant argues in its motion for summary judgment that plaintiff has failed to establish a prima facie case for national origin discrimination and that if he has made out a prima facie case he has not rebutted the defendant's proffered legitimate nondiscriminatory reason for terminating plaintiff.

To make out a prima facie case for national origin discrimination an employee must establish by the preponderance of the evidence that he was a member of an affected class he was subject to adverse employment action he was qualified for the job and he was treated differently than similarly situated non minority employees for the same or similar conduct. Thomas v. Autumn Woods Residential Health Care Facility, 905 F. Supp.414, 419 (E.D.Mich.1995)(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 93 S. Ct.1817, 1824 36 L. Ed. 2d 668 (1972)). An employer may rebut a prima facie case by demonstrating that the adverse employment action was taken for a legitimate nondiscriminatory reason. Id. at 420. The burden then shifts to the employee to establish that the employer's proffered reason is a pretext for discrimination. Id. (citing Ang v. Procter & Gamble Co., 932 F.2d 540, 548 (6th Cir.1991)).

Assuming without deciding that plaintiff has established a prima facie case of national origin discrimination against defendant, defendant has offered a legitimate nondiscriminatory reason for terminating plaintiff; that plaintiff twice reported to work while under the influence of alcohol in violation of the company substance abuse policy. Plaintiff refutes that defendant's asserted reason was a legitimate one by denying that he was under the influence of alcohol on June 10, 1996. Nevertheless courts have repeatedly held that plaintiff's denial of the defendant's articulated legitimate reason without producing substantiation for the denial is insufficient for a...discrimination claim to withstand a motion for summary judgment.

Mitchell v. Toledo Hospital, 964 F.2d 577, 581 (6th Cir.1992). Further there was ample evidence supporting defendant's belief that plaintiff was under the influence of alcohol even if he in fact was not. Therefore plaintiff has not raised a genuine issue of material fact to refute defendant's evidence of its legitimate non-discriminatory reason for plaintiff's discharge. *fn3

Plaintiff may also recover by proving that he was the victim of intentional discrimination. To succeed on this theory of recovery plaintiff must present credible direct evidence of discriminatory intent on the part of the decision-maker. Pitts v. Michael Miller Car Rental, 942 F.2d 1067 (6th Cir.1991); Manning v. City of Hazel Park, 202 Mich.App.685, 509 N.W.2d 874 (1993). The plaintiff must show that he was a member of a protected class he was discharged and the person responsible for the termination decision was both predisposed to discriminate against person in the protected class and actually acted on that predisposition in the discharge decision. Id. Plaintiff here does not allege that any of the supervisors responsible for the decision to terminate his employment had ever made any of the derogatory remarks about his national origin of which he had been the subject (Plaintiff's Deposition pp. 253-255). These remarks do not demonstrate that the decision to terminate plaintiff's employment was based upon a predisposition to discriminate. Plaintiff has not established a prima facie case under an intentional discrimination theory.

Because there exists no genuine issue of material fact and defendant is entitled to judgment as a matter of law defendant's motion for summary judgment shall be granted under an Order issued this date.

 
Notes:
*fn1 Court held a hearing on this matter on April 3, 1997, at which plaintiff agreed to dismiss defendant Borman's Inc. and proceed only against defendant Great Atlantic and Pacific Tea Co. Inc. ("A&P").

*fn2 Plaintiff worked for Borman's Inc. from 1966 until 1989 when Borman's Inc. was purchased by defendant A&P.

*fn3 While plaintiff can argue that in fact he was not under the influence of alcohol the evidence clearly supports a finding as a matter of law that defendant had reason to (and in fact did ) believe that he was under the influence of alcohol.