ADA Decisions Archive: 1992 - 1995, DISABILITIES-DECISIONS 1 ADD ¶1-004, Edith T. Morrison, Plaintiff v. Detroit-Macomb Hospital Corporation, Defendant., (Jan. 25, 1993), (Jan. 25, 1993)

Edith T. Morrison, Plaintiff v. Detroit-Macomb Hospital Corporation, Defendant.

United States District Court, Eastern District of Michigan, Southern Division. No. 92-CV-72340-DT, January 25, 1993

Americans with Disabilities Act of 1990

Employment--Timeliness of court action--Continuing violation. Repeated refusals of an employer to reemploy a woman who stopped working due to an injury prior to the ADA’s effective date could not be treated as continuing violations so as to trigger a new limitations period, even though those refusals continued after the ADA took effect. There was no evidence of present discriminatory activity nor evidence of a longstanding and demonstrable policy of discrimination. Because the events giving rise to the woman’s claim took place before the Act took effect, she was not entitled to relief under the ADA.

Employment--EEOC procedure--Charge sufficiency. ADA charge filing requirements were not satisfied when a plaintiff sent to the Equal Employment Opportunity Commission a copy of a letter she had sent to her employer. There was no evidence the EEOC ever received the letter, and the woman produced no right-to-sue letter. Moreover, the plaintiff failed to present compelling circumstances to justify departure from the required procedures.

Rehabilitation Act of 1973

Michigan Handicappers’ Civil Rights Act

Employment--Court procedure--Claim preclusion. Previous litigation dismissing a woman’s claim alleging that an employer unlawfully refused to rehire her because of her disability barred her subsequently filed similar claim, even though the employer continued to refuse rehire requests made by the woman. The later acts of the employer to fail to reemploy the plaintiff did not give rise to a new claim each time the acts occurred because the continuing effect of the alleged past discriminatory act was that the plaintiff did not work for the employer, a fact that existed at the time of the first action.

Employment--Accommodation--Transfer/reassignment. A hospital’s attempts to place an injured LPN nurse in a job she could perform despite her injury, including placing her in clerical positions, were sufficient to fulfill its duty to reasonably accommodate the nurse. The nurse produced no convincing evidence that she could perform the essential functions of either an LPN or a file clerk.

Duggan, D.J.: Plaintiff Edith T. Morrison brings this four-count employment discrimination lawsuit against defendant Detroit-Macomb Hospital Corporation (DMHC). Plaintiff Charges DMHC with disability and handicap discrimination in violation of the Americans With Disabilities Act of 1990 (ADA), 42 U.S.C. §12101 et seq., §504 of the Rehabilitation Act of 1973 (the Rehabilitation Act), 29 U.S.C. §794, and the Michigan Handicappers’ Civil Rights Act (MHCRA), Mich. Comp. Laws Ann. §37.1101 et seq. (Counts I-III respectively). Count IV is a tort claim for intentional infliction of emotional distress (IIED). On November 13, 1992 DMHC filed the summary judgment motion presently before the Court seeking dismissal of all counts. [1] The Court has reviewed the pleadings in support of and in opposition to such motion, and has had the benefit of oral argument by counsel at a January 21, 1993 hearing. For the reasons that follow, DMHC’s motion shall be granted.

I. Factual and Procedural Background

Plaintiff, a licensed practical nurse (LPN), began her employment at South Macomb Hospital in July of 1978 and her last day of work was March 18, 1988. [2] Plaintiff avers that on February 3, 1981, when she was working in the rehabilitation unit, she slipped and fell in DMHC’s parking lot dislocating her left shoulder. Plaintiff contends that as a result of the fall she developed thoracic outlet syndrome (a condition which prevents her from pushing or pulling with her left arm above shoulder level). Plaintiff remained off work collecting workers’ compensation until approximately April 24, 1981. Upon return to work, plaintiff worked with restricted duties until approximately January of 1982.

Plaintiff avers that on August 6, 1982 she left work after re-injuring her shoulder while performing her duties as an LPN in the rehabilitation unit and that she remained off work collecting workers’ compensation until approximately August 24, 1982. Plaintiff returned to her LPN duties on August 24, 1982, and sometime between August and October of 1982 she was transferred to an LPN position in the medical-surgical unit (a position that would not involve as much lifting, pulling and pushing). On November 4, 1982 plaintiff left work again complaining of shoulder pain. This was the last day plaintiff worked as an LPN.

Plaintiff remained off work collecting worker’s compensation from November 4, 1982 until May 24, 1985. [3] On May 1, 1985, plaintiff was examined by a physician and cleared for return to work. On May 24, 1985 DMHC discontinued voluntarily making workers’ compensation benefit payments and filed a Notice of Dispute with the Workers’ Compensation Bureau contending plaintiff was no longer disabled. [4]

In August of 1985, while her workers’ compensation claim was pending, plaintiff filed a civil complaint in Wayne County Circuit Court. Morrison v. Detroit-Macomb Hospital Corp., No. 85-520363-CL. Plaintiff alleged that the hospital retaliated against her for filing a workers’ compensation claim and violated the MHCRA by refusing to return her to work because of a disability.

While the workers’ compensation claim and the civil suit were pending the following occurred:

On October 4, 1985 DMHC offered plaintiff a LPN position in the medical/surgical unit (10/4/85 Ltr. from David E. Corba, Director of Personnel); plaintiff responded that she was under doctor’s orders not to lift or elevate her arms and that she needed a “limited” LPN position. (10/12/85 Morrison Ltr.) DMHC responded that LPN duties require lifting and that if her physician-imposed restrictions were true, she could not perform LPN duties; that she must appear at a physical examination to enable the hospital to verify her condition; and that if she would like to be considered for a unit clerk position (which did not require lifting) she should contact the hospital. (11/8/85 Corba Ltr.)

On December 23, 1985 plaintiff began working as a unit clerk. On January 24, 1986 plaintiff went home complaining of shoulder pain related to the use of an addressograph machine.

From January 19 to approximately February 27, 1987, and again from March 16 to March 31, 1987 plaintiff worked as a file clerk. Plaintiff left work on both occasions complaining of shoulder pain. The file clerk job was a position DMHC created to accommodate plaintiff’s shoulder condition. (Guinane Aff. at 4) [5]

On February 19, 1988 plaintiff returned to work as a file clerk with her job description modified to state that she was not to use her affected arm. (Morrison Dep. at 56; Guinane Aff. at 4) Plaintiff left the job on March 18, 1988 because she could not perform the duties due to her shoulder condition. This was the last day plaintiff worked for DMHC.

On November 28, 1988 Dr. John L. Glover saw plaintiff and indicated she was able to return to work “if a job is available which does not require use of the left hand and arm.” (11/28/88 Dr. Glover Ltr.) On November 29, 1988 plaintiff met with Guinane and discussed her desire to return to work in a position within her medical restrictions. Guinane confirmed the meeting by letter dated December 8, 1988 and advised plaintiff that the hospital had various positions open and that she should indicate her interest in such jobs by December 20. By letter dated December 14, 1988 plaintiff wrote to schedule an appointment, and she met with Guinane on December 29. At the meeting, Guinane gave plaintiff job descriptions and plaintiff left the meeting indicating she would review the job duties with her physician. (Guinane Aff. at 5)

After numerous pre-trial conferences and a trial, by Opinion dated May 8, 1989, Magistrate Allan D. Chisholm of the Michigan Department of Labor Board of Magistrates ruled on plaintiff’s pending workers’ compensation claim. (Def. Ex. E) Magistrate Chisholm found that plaintiff was disabled from returning to work as an LPN; that she was partially disabled in her general field of employment and in work suitable to her qualifications and training; that as a result of many pre-trial conferences held during the pendency of her claim, between 1985 and 1988 DMHC had made three job offers; that plaintiff reasonably refused the first job offer (the unit clerk job) because her shoulder condition precluded her from using the addressograph machine; that DMHC did not meet its burden of proof that the second job (the file clerk job) was within plaintiff’s limitations because the job required the use of plaintiff’s left arm at shoulder level and because of the left-handed method plaintiff used to pull files; [6] and that plaintiff could easily accomplish all of the tasks in the third job offered but did not attempt to so. Thus, Magistrate Chisholm concluded that the third job was a bona fide offer of reasonable employment within plaintiff’s capacity to perform and that plaintiff refused the job without reasonable cause. Therefore, no benefits were awarded beyond February 19, 1988. [7]

On June 14, 1989 plaintiff met with Guinane indicating she wanted to return to work at some reasonable job. (6/14/89 Morrison Ltr.) Guinane responded that the hospital had no LPN positions available at that time, and that if plaintiff was interested in other positions she was free to review the list of job openings. (7/24/89 Guinane Ltr.) Plaintiff wrote Guinane again on July 31, 1989 to find out when she could come in and review the current job availability list. Guinane responded that the list was posted at the hospital and she was free to come in any time during normal business hours. (8/3/89 Guinane Ltr.)

[Discrimination Complaint Filed]

On November 2, 1989 plaintiff filed a complaint with the Michigan Department of Civil Rights (MDCR) alleging that DMHC had denied employment reinstatement from “July 24, 1989 & Cont” based upon her handicap. (Def. Ex. F, 11/2/89 MDCR Complaint No. 111472EM14)

By letter dated December 28, 1989 plaintiff advised Guinane that she had applied for two LPN positions on November 6, 1989; that she was “highly qualified” for the positions; and that she had not received an answer. Plaintiff asked Guinane if it was the hospital’s policy to “exclude disabled nurses or nurses over 50” in their recruitment and hiring selections and sent a copy of the December 28, 1989 letter to the MDCR and the Equal Employment Commission.

The results of the MDCR investigation of plaintiff’s Complaint No. 111472EM14 were as follows: plaintiff could not perform tasks of the LPN position; under the MHCRA, DMHC was not obligated to find plaintiff a job if she could not perform the tasks of her original job; there was no evidence that the requirements of the LPN position were a pretext for discrimination; and the investigation did not disclose any evidence of unlawful discrimination. (Def. Ex. F) The MDCR dismissed the complaint on January 30, 1990.

A March 19, 1990 hearing was held in Wayne County Circuit Court on the hospital’s summary disposition motion with regard to plaintiff’s pending civil suit (Del Ex. D) The hospital sought summary disposition arguing that plaintiff’s claims were barred by the doctrine of collateral estoppel in view of the Magistrate’s workers’ compensation findings. For reasons set forth on the record the hospital’s motion was granted as to both counts and the complaint was dismissed. Morrison v. Detroit-Macomb Hospital Corp., No. 85-520363-CL, slip op. (Wayne Co. Cir. Ct. Mar. 27, 1990) (Simmons, Jr., J.), appeal denied SC:94340, 1992 Mich. LEXIS 3158 (Mich. Sup. Ct. Dec. 2, 1992). In ruling on the hospital’s motion, Judge Simmons stated:

In my ... the issue in the case at bar has necessarily been determined by the Magistrate’s finding that ... Plaintiff was partially disabled, hence a retaliation claim is moot .... It must also be pointed out that Plaintiff in her deposition admitted that she was disabled. She cannot later turn around and allege retaliation for filing a Worker’s Compensation action as grounds for her termination, as Shepard’s concurring opinion makes clear in Lopus versus L&L Shop-Rite. Inc., 171 Mich. App. 486:

It is not necessary for us to resolve the question of whether there is a contract or tort action. The plaintiff in this case admittedly was incapable of working. She was entitled to claim, and did claim, Worker’s Compensation benefits, and this claim was settled, ie., she received benefits. If plaintiff were capable of working, we would be faced with the question of whether her having been discharged is a contract or a tort action. Since she cannot work, the issue need not be resolved.

Similarly ... Plaintiff, based on her disability, is incapable of working. The issue then becomes one of law instead of fact. I find persuasive authority in Morawa v. Consolidated Rail Corp. 685 F. Supp. 619 (E.D. Mich. 1986), where the court discussed the doctrine of judicial estoppel. The doctrine applies to a party who successfully asserted a position in a prior proceeding and estops that person from asserting an inconsistent position in a subsequent proceeding. Such use of inconsistent positions would most flagrantly exemplify that playing the fast and loose with the courts, which has been emphasized as an evil, the Court should not tolerate.

The Plaintiff in the case at bar is changing her position from one [of] disability to one of retaliation because of handicap. This is a posture which should not be tolerated ....

To the extent that ... weight is given to the Magistrate’s report and the Magistrate having determined that the Plaintiff was disabled and thus unable to work, then the issue of retaliation becomes moot. The Defendant’s motion for summary disposition, therefore, should be granted.

Morrison v. Detroit-Macomb Hospital No. 85-520363-CL 3/19/90 Hearing Trans. at 4-6.

After the civil suit was dismissed, letters between plaintiff and DMHC continued wherein plaintiff sought re-employment and DMHC attempted to accommodate her request. (Morrison Ltrs. of 9/6/90, 1/14/91, 7/27/92 ,8/24/92; Guinane Ltrs. of 2/15/91, 8/5/92, 9/4/92) Plaintiff met with Guinane on September 21, 1992 and discussed two openings (patient liaison and surgical services LPN). When asked if she could perform the duties of the positions, plaintiff advised Guinane that she would have to discuss the matter with her physician. Plaintiff was advised that the hospital was interviewing to fill the positions and needed her response by September 25, 1992. (9/22/92 Guinane Ltr.) Guinane offered to pay for plaintiff’s doctor’s appointment so that a determination could be made regarding her ability to perform the duties of the two positions. (Id.) Plaintiff responded through her attorney that she could not obtain an appointment with her physician for two months. (9/24/92 Ltr. from Douglas J. Maskin to Guinane) The hospital responded through their attorney that the positions had to be filled at that time, and that plaintiff was free to apply for other positions. (10/1/92 Ltr. from Jennifer S. Buckley to Maskin)

Plaintiff filed this action on April 27, 1992, and DMHC moved for summary judgment as to all claims November 13, 1992.

II. Standard of Review

Under Federal Rule of Civil Procedure 56(c), the moving party bears the initial burden of informing the Court of the reason(s) for their motion and identifying the absence of a genuine issue of material fact Celotex Corp. v. Catrett 477 U.S. 317, 106 S.Ct 2548, 2553, 91 L.Ed.2d 265 (1986). Entry of summary judgment is appropriate “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 106 S.Ct at 2552. The substantive law identifies which facts are material, and once materiality of a fact is established the Court must determine whether a genuine issue regarding that fact exists in the record. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

To avoid summary judgment in the face of a properly supported motion for summary judgment, Rule 56(e) “requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.'” Celotex, 106 S.Ct at 2553. When making this determination inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. v. Zenith Radio Corp. 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

III. Discussion

Plaintiff contends that she could not perform the duties of the positions DMHC offered her due to her shoulder condition and medical restrictions; that positions were and are available at the hospital within her medical restrictions; and that despite her repeated requests to be placed in such positions, DMHC refused to offer her employment and/or accommodate her handicap/disability.

A. ADA Claim

DMHC contends that plaintiff has failed to state an ADA cause of action because the alleged events giving rise to such claim occurred prior to the effective date of the ADA. This Court agrees. The employment-related provisions of the ADA applicable to this cause of action went into effect on July 26, 1992. [8] Plaintiff last worked for DMHC in March of 1988. The unlawful conduct alleged is DMHC’s failure to re-employ plaintiff because of her disability. The discriminatory act complained of occurred before the effective date of the applicable provisions of the ADA, and consequently, plaintiff is not entitled to relief under the ADA.

To avoid this result, plaintiff argues that as recently as July 27, 1992 she sent another letter to Guinane requesting job accommodation pursuant to the ADA; that DMHC failed to accommodate her, that such refusal constitutes a “continuing violation” of the ADA; and that the most recent violation occurred subsequent to the effective date of the ADA Plaintiff misconstrues the “continuing violation” doctrine, which falls “into two categories of ‘narrowly limited exceptions’ to the usual rule that ‘statutes of limitations ... are triggered at the time the alleged discriminatory act occurred. Dixon v. Anderson, 928 F.2d 212, 216 (6th Cir. 1991).

The first category ... arises where there is some evidence of present discriminatory activity giving rise to a claim of a continuing violation; that is, where an employer continues to impose disparate work assignments or pay rates between similarly situated employee groups. The rationale underlying this category is that the employer commits an illegal act, such as giving unequal pay for equal work, each time the employer dispenses the unequal pay .... Thus limitations periods begin to run in response to discriminatory acts themselves, not in response to the continuing effects of past discriminatory acts.

. . .

The second category ... arises where there has occurred a longstanding and demonstrable policy of discrimination. Unrelated incidents of discrimination will not suffice to invoke this exception; rather, there must be a continuing over-arching policy of discrimination. Generally, repeated requests for further relief from a prior act of discrimination will not set the time limitations running anew. However, where there has been a longstanding policy of discrimination, repeated attempts to gain employment or promotions may each trigger the running of a new limitations period.

Id. at 216-17 (citations and internal quotations omitted).

Plaintiff’s allegations do not fall into either category. The essence of plaintiff’s complaint is that DMHC has not re-employed her because of her handicap. Plaintiff last worked for DMHC on March 18, 1988. Thus, it is clear that the continuing effect of DMHC’s alleged discriminatory conduct (which occurred in March of 1988) is that plaintiff does not work for DMHC. Plaintiff has been trying since she lost her job to be re-employed into another position. [9] However, her continued efforts to achieve re-employment have not triggered a new limitations period. As the Dixon Court stated, repeated requests for relief from a prior act of discrimination will not set the limitations period running anew unless there has been a long-standing policy of discrimination. Plaintiff has not presented any evidence that supports a conclusion that DMHC has a “continuing over-arching policy of discrimination,” or that the continuing violations doctrine applies to DMHC’s alleged discriminatory conduct.

Therefore, viewing all inferences to be drawn from the underlying facts in a light most favorable to plaintiff, there exist no genuine issues of material fact that the conduct which gave rise to plaintiff’s ADA claim occurred well before the effective date of the ADA. Consequently, DMHC is entitled to summary judgment as to Count I.

[Failure to File Charge]

Alternatively DMHC argues summary judgment should enter as to Count I because plaintiff did not file a charge with the Equal Employment Opportunity Commission (EEOC) nor did she receive a right-to-sue letter before filing suit. See 42 U.S.C. §12117(a) (adopting the procedural requirements set forth in Title VII). Plaintiff responds that by copying the EEOC on a letter dated December 28, 1989 addressed to Guinane, she has satisfied ADA procedural requirements. This Court disagrees. Nothing in the record suggests that the EEOC ever received the letter (for example, the EEOC did not draft a formal charge and send it back to plaintiff with instructions to sign and return it), [10] and in any event, plaintiff has not produced a right-to-sue letter.

While the procedural requirements established by Congress for gaining access to federal courts are not jurisdictional, such procedures are not to be lightly disregarded. Puckett v. Tennessee Eastman Co., [52 EPD ¶39,480] 889 F.2d 1481, 1487 (6th Cir. 1989) (affirming summary dismissal of plaintiff’s Title VII claim where plaintiff had not requested or received a right-to-sue letter). Only where compelling circumstances are present should a district court find that a plaintiff may by-pass Congressionally mandated procedural requirements. Id. at 1488. Plaintiff has not satisfied the procedural requirements of the ADA and has not, in this Court’s view, presented compelling circumstances which would justify departure from such procedures.

B. Rehabilitation Act and MHCRA Claims

DMHC argues that in view of Judge Simmons’ 1990 decision in Morrison v. Detroit-Macomb Hospital Corp., No. 85-520363-CL (the “first action”), plaintiff’s claims under the Rehabilitation Act and the MHCRA are barred by the doctrines of res judicata (claim preclusion) and/or collateral estoppel (issue preclusion). [11] DMHC argues that the first action put forth a claim of handicap discrimination under the MHCRA and plaintiff could have, but did not, make a claim under the Rehabilitation Act, [12] and that the present lawsuit centers on a common nucleus of operative facts present at the time of the first action.

In Sanders Confectionery Products, Inc. v. Heller Financial, Inc., 913 F.2d 474 (6th Cir. 1992), cert denied No. 92-853, 1993 U.S. LEXIS 900 (U.S. Jan. 19, 1993), the Court clarified the doctrines of res judicata and collateral estoppel:

Res judicata should not be confused with collateral estoppel or issue preclusion. This latter doctrine only preclude[s] relitigation of issues of fact or law actually litigated and decided in a prior action between the same parties and necessary to the judgment, even if decided as part of a different claim or cause of action. In contrast, res judicata, or claim preclusion, has four elements:

1. A final decision on the merits in the first action by a court of competent jurisdiction;

2. The second action involves the same parties, or their privies, as the first;

3. The second action raises an issue actually litigated or which should have been litigated in the first action;

4. An identity of the causes of action.

Id. at 480 (citation and internal quotations omitted).

Judge Simmons’ decision in the first action is a final judgment on the merits by a court of competent jurisdiction. Defendant DMHC owns Macomb Hospital Center (formerly known as South Macomb Hospital) and is therefore in privity with a party to the first action. Therefore, this action involves the same parties, or privies to the first action.

Counts II and III raise issues actually litigated or which should have been litigated in the first action. This third element precludes parties from bringing claims they have already brought or should have brought Id. at 482. Plaintiff brought a MHCRA claim in her first action premised upon the same alleged discriminatory conduct which gave rise to this action (DMHC’s alleged failure to re-employ her because of her handicap). Judge Simmons ruled that because of the position plaintiff bad taken in the workers’ compensation proceeding, and because plaintiff stated in her deposition that she was disabled and could not work, plaintiff could not prevail on her MHCRA claim. [13] Similarly, to prevail on her §504 claim, plaintiff must demonstrate that she was “otherwise qualified” for a position she was denied. Jasany v. U.S. Postal Service, [36 EPD ¶35,070] 755 F.2d 1244, 1250 (6th Cir. 1985). “A ‘qualified handicapped person’ is one ‘who, with or without reasonable accommodation, can perform the essential functions of the position in question.'” Id. (citation omitted). Judge Simmons finding that plaintiff was disabled and incapable of working precludes her from showing she in was “otherwise qualified” to perform a position with DMHC in this action. Therefore, this action raises issues which were actually litigated and/or which should have been litigated in the first action.

The fourth requirement is that there is an identity of the causes of action. “Identity of causes of action means an ‘identity of the facts creating the right of action and of the evidence necessary to sustain such action.'” Sanders 973 F.2d at 484 (citation omitted). Both the first action and this action are premised upon DMHC’s alleged failure to re-employ plaintiff in violation of statutes which prohibit discrimination in employment based upon handicaps. Judge Simmons considered the issue in his 1990 ruling. Therefore, there is both an identity of facts and evidence in both actions sufficient to satisfy this fourth requirement.

Plaintiff’s opposing summary judgment arguments are without merit. Plaintiff attempts to factually distinguish this action from the first action relying on the letters she sent to DMHC dated subsequent to dismissal of the first action. This argument is premised upon the same theory put forth to oppose summary dismissal of the ADA count--that DMHC’s alleged discriminatory conduct is of a continuing nature and each time DMHC does not re-employ plaintiff in response to plaintiff’s letters and demands, such “recent acts” give rise to a new cause of action which will be premised upon different facts and evidence than those present in the first action. This argument is faulty for the same reason it was rejected under the ADA claim. The alleged discriminatory act is DMHC’s failure to re-employ plaintiff. Plaintiff has not worked for DMHC since March of 1988. The continuing effect of the alleged past discriminatory act is that plaintiff does not work for DMHC. The fact that DMHC did not re-employ plaintiff in response to plaintiff’s continued demands made subsequent to dismissal of the first action does not give rise to a new cause of action. [14]

Given the foregoing, and viewing the facts in a light most favorable to plaintiff, the Court believes there exist no genuine issues of material fact that the Rehabilitation Act and MHCRA claims are barred by the doctrines of res judicata and/or collateral estoppel. Therefore, DMHC is entitled to summary judgment as to Counts II and III.

[Accommodation Duty]

Alternatively, DMHC argues that it is entitled to summary dismissal of Counts II and Ill because there exist no genuine issues of fact that plaintiff cannot perform the essential functions of the jobs she was assigned; that to grant the accommodations she seeks with regard to LPN positions would endanger the health and safety of others; and that DMHC has fulfilled its duty to accommodate plaintiff. During oral argument counsel for DMHC highlighted the actions taken by DMHC in seeking to accommodate plaintiff’s handicap. All of these actions are set forth in this Opinion at Section I (Factual and Procedural Background).

Plaintiff does not dispute that DMHC repeatedly took affirmative steps to place her in a job that she could perform in spite of her handicap. Apparently, it is plaintiff’s position that DMHC has a duty to do more, and that she is capable of performing in an LPN and/or clerical position as long DMHC acts reasonably by offering some work within her medical restrictions. However, as DMHC points out, plaintiff testified at her October 6, 1992 deposition that her handicap limits her from “doing all the functions of an LPN job.” (Morrison Dep. at 10) [15] Likewise, the record indicates plaintiff attempted to perform in clerical positions on several occasions and each time she left work complaining of pain. Plaintiff has offered no convincing proofs that she is capable of performing the duties of either an LPN or a file clerk.

In this Court’s view, DMHC’s proofs demonstrate that plaintiff is unable to perform the essential functions of the positions in question because of her handicap; [16] that plaintiff’s handicap is related to the positions in question; [17] and that DMHC has fulfilled its duty to reasonably accommodate plaintiff. [18] Plaintiff has not met her summary judgment burden by going beyond the pleadings and designating specific facts which show there is a genuine issue for trial on these issues.

C. Intentional Infliction of Emotional Distress (IIED)

DMHC contends that assuming the Michigan Supreme Court would recognize a cause of action for IIED, the conduct alleged in support of Count IV does not satisfy the required level of outrageous conduct necessary to support such a claim. The Court agrees. In Rush v. United Tech., Otis Elevator Div.. [56 EPD ¶40,703] 930 F.2d 453 (6th Cir. 1991), the Court affirmed summary dismissal of an IIED claim in an employment case. Id. at 454. Acknowledging that the Michigan Supreme Court has yet to recognize the tort, Rush set forth the elements of an IIED claim adopted by panels of the Michigan Court of Appeals. See id. at 456. The Court concluded that “[w]ithout attempting to define the contours of this tort, if recognized in an employment setting, suffice it to say that plaintiff has alleged no action on the part of the defendant here that would equate with the type of outrageousness contemplated by the Restatement.” Id. at 456-57. The facts presented in the instant action, like those in Rush, do not equate with the type of outrageous conduct contemplated by the Restatement. Summary judgment in DMHC’s favor as to Count IV shall be granted.

IV. Conclusion

For the reasons set forth above, DMHC’s motion for summary judgment shall be granted as to all counts and plaintiff’s complaint shall be dismissed. An order consistent with this Opinion shall issue forthwith.