Littsey v. Board of Governors of Wayne State University

310 N.W.2d 399, 108 Mich. App. 406, 1981 Mich. App. LEXIS 3172

• Court: Michigan Court of Appeals
• Decided: August 5, 1981
• Docket: Docket 48999
• Status: Published

Opinions

N. J. Kaufman, P.J.

Plaintiff appeals from a grant of accelerated and summary judgment by the Wayne County Circuit Court.

Plaintiff initiated this cause in Wayne County Circuit Court on July 25, 1979. This action was premised on alleged violations of the Michigan Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq., by defendant, which resulted in plaintiff’s dismissal from the Wayne State University Law School.

In his complaint, plaintiff alleged that he had lost substantially all of the hearing in his left ear because of the amputation of that ear drum. During the fall semester of 1977, plaintiff requested permission from two of his professors as well as from a law school dean to tape-record specific lectures because of his hearing impediment. Plaintiff claims that such permission was denied by one professor and that the dean, while giving permission to plaintiff to tape-record lectures, did not send a memo notifying plaintiff’s professors that such accommodation should be made. Plaintiff asserts that as a result of his hearing problems, plaintiff received a C minus in one course and withdrew from the other. Plaintiff prayed for an injunctive order restoring him to law school and further claimed damages in tort.

Defendant responded by way of motions for accelerated and/or summary judgment. Defendant contended that only the Court of Claims had jurisdiction to hear this cause of action against a state agency, according to MCL 600.6419; MSA 27A.6419. One portion of the motion for summary judgment was premised on GCR 1963, 117.2(1). Defendant alleged that plaintiff had failed to state a claim upon which relief could be granted, in that plaintiff had misconstrued the Handicappers’ Civil Rights Act (hereinafter HCRA) as creating a duty affirmatively to accommodate handicapped law students. The other portion of the motion for summary judgment was based upon GCR 1963, 117.2(3), the lack of existence of a genuine issue of material fact. Defendant argued that plaintiff failed to make any causal connection between his handicap and his termination as a law student.

Defendant attached various affidavits to its motions, including one by evidence professor Ralph Slovenko. Professor Slovenko stated that while he remembered a student asking permission to tape, he did not recall that such student ever represented that he had an auditory problem which prevented him from properly hearing lectures. Plaintiff’s affidavit and objection to defendant’s motions set forth the history and extent of his hearing problems. In his affidavit, plaintiff reiterated his attempts to gain approval to use his tape recorder. At the time he made such attempts, his left ear was fully bandaged because of a recent operation. Plaintiff related his hearing deficiency to his lack of success in law school during the semester in question, which was his last, because of his poor grades.

In granting accelerated judgment, the trial court concluded that the Court of Claims was the proper forum in which to bring this action.

The trial court also granted defendant’s motion for summary judgment, based on GCR 1963, 117.2(3) and (1). Plaintiff brings this appeal as of right, pursuant to GCR 1963, 806.1.

Plaintiff first contends that the trial court erred in granting accelerated judgment on the basis that an action under the HCRA against a state agency must be initiated in the Court of Claims.

The Court of Claims has exclusive jurisdiction over claims against the state. MCL 600.6419; MSA 27A.6419. This includes claims against a state university. Fox v Board of Regents of University of Michigan, 375 Mich 238; 134 NW2d 146 (1965), Sprik v Regents of University of Michigan, 43 ; 204 NW2d 62 (1972), aff’d 390 Mich 84; 210 NW2d 332 (1973).

MCL 600.6419(4); MSA 27A.6419(4) limits the jurisdiction of the Court of Claims as follows:

"(4) This chapter shall not be construed so as to deprive the circuit courts of this state of jurisdiction over actions brought by the taxpayer under the provisions of Act No. 167 of the Public Acts of 1933 or any other actions against state agencies based upon the statutes of the state of Michigan in such case made and provided, which expressly confer jurisdiction thereof upon the circuit courts, nor of the proceedings to review findings as provided in Act No. 1 of the Public Acts of the Extra Session of 1936, or any other similar proceedings expressly authorized by the statutes of the state of Michigan in such case made and provided.” (Emphasis added.)

The Court of Claims is a "legislative court” and not a "constitutional court” and derives its powers only from the act of the Legislature and is subject to the limitations therein imposed. Manion v State Highway Comm’r, 303 Mich 1; 5 NW2d 527 (1942), cert den 317 US 677; 63 S Ct 159; 87 L Ed 543 (1942). The Legislature created a Court of Claims as a substitute "for the 'board of State auditors’ and the 'State administrative board’ for the purpose of hearing and determining 'all claims and demands, liquidated and unliquidated, ex contractu and ex delicto against the State’ * * Id., 20. Taylor v Auditor General, 360 Mich 146, 150; 103 NW2d 769 (1960). Thus, the jurisdiction granted to the Court of Claims is "narrow and limited, substituting, merely, a 'court’ of claims for the superseded claims jurisdiction of the earlier boards”. Id.

The HCRA sets forth the following complaint procedure:

"Sec. 605. A complaint alleging an act prohibited by this act shall be subject to the same procedures as a complaint alleging an unfair employment practice under Act No. 251 of the Public Acts of 1955, as amended, being sections 423.301 to 423.311 of the Michigan Compiled Laws, or under the existing state law dealing with unfair employment practices if Act No. 251 of the Public Acts of 1951, as amended, is repealed.” MCL 37.1605; MSA 3.550(605).

1955 PA 251 was part of the former Michigan State Fair Employment Practices Act, which was repealed by 1976 PA 453, effective March 31, 1977. At the same time that 1955 PA 251 was repealed, a new act, known as the Elliott-Larsen Civil Rights Act, MCL 37.2101; MSA 3.548(101), was passed. The act provides the following complaint procedure:

"Sec. 801(1). A person alleging a violation of this act may bring a civil action for appropriate injunctive relief or damages, or both.

"(2) An action commenced pursuant to subsection (1) may be brought in the circuit court for the county where the alleged violation occurred, or for the county where the person against whom the civil complaint is filed resides or has his principal place of business.

"(3) As used in subsection (1), 'damages’ means damages for injury or loss caused by each violation of this act, including reasonable attorney’s fees.” MCL 37.2801; MSA 3.548(801).

This Court cannot accept defendant’s contention on appeal that § 801 is strictly a venue statute, not affecting the exclusive jurisdiction of the Court of Claims in actions against a state university. Actions brought pursuant to either the HCRA or the Elliott-Larsen Civil Rights Act are constitutional claims. Under the latter act, the circuit courts have jurisdiction, and §605 of the HCRA states that a complaint filed under the HCRA must comport with the procedural provisions of the existing state law dealing with fair employment practices, that is, the Elliott-Larsen act. It is, therefore, our opinion that the Court of Claims would have no jurisdiction over the instant case. For this reason, the trial court erred in granting defendant’s motion for accelerated judgment on the ground that the Court of Claims had exclusive jurisdiction over the subject cause.

Plaintiff next argues that the trial court erred in finding no genuine issue as to any material fact and in entering summary judgment pursuant to GCR 1963, 117.2(3).

The Michigan HCRA provides in pertinent part:

"Sec. 402. An educational institution shall not:

"(a) Discriminate in any manner in the full utilization of or benefit from the institution, or the services provided and rendered thereby to an individual because of a handicap that is unrelated to the individual’s ability to utilize and benefit from the institution or its services, or because of the use by an individual of adaptive devices or aids.

"(b) Exclude, expel, limit, or otherwise discriminate against an individual seeking admission as a student or an individual enrolled as a student in the terms, conditions, and privileges of the institution, because of a handicap that is unrelated to the individual’s ability to utilize and benefit from the institution or because of the use by an individual of adaptive devices or aids.” MCL 37.1402; MSA 3.550(402).

The trial court’s order of November 30, 1979, granted defendant’s motion for summary judgment pursuant to GCR 1963, 117.2(1) (failure to state a claim) and 117.2(3) (no genuine issue of material fact).

The events at issue are those which occurred during the fall, 1977, semester, after plaintiff had been readmitted to law school provisionally, following termination in June, 1976, because of unsatisfactory academic performance. Plaintiffs readmission was expressly conditioned upon his achievement of a 2.33 grade point average during the fall term. Plaintiff had undergone ear surgery in August, 1977, and had not regained any hearing in the affected ear by the time the fall term began. Plaintiff was terminated by the law school after he received a 1.85 grade point average for course work completed during the term in question.

Plaintiff filed suit under the HCRA on the ground that the university discriminated against him by refusing to permit him to use a tape recorder in certain classes. The complaint specified two fall, 1977, classes — Evidence, taught by Professor Slovenko, and Professional Responsibility, taught by Judge Horace Gilmore. Plaintiffs affidavit states that when he asked Judge Gilmore if he could use a tape recorder because of his surgery and hearing difficulties, Judge Gilmore indicated that he had no objection as long as the school administration concurred. Plaintiffs affidavit further indicates that Dean Sharon Brown, Dean of Student Affairs, stated that she did not object to plaintiffs use of a tape recorder in his classes; however, she did not notify plaintiffs instructors officially as plaintiff requested.

Plaintiff also stated that Professor Slovenko refused plaintiff permission to use a tape recorder in Evidence class, despite plaintiffs request during the first week of class for such permission because plaintiff just had undergone ear surgery and was having hearing difficulty. Professor Slovenko, in his affidavit, stated that he did tell a student during the fall, 1977, term that tape-recording of the class would not be permitted. However, Slovenko also stated that he did not recall plaintiff as being the individual who requested to tape the class, that he did not recall plaintiff as ever indicating that he had a hearing problem, and that many seats were available at the front of the classroom, in proximity to the lecturer, for any individual with an auditory problem.

As this Court views the instant situation, a possible issue of fact which might have aided plaintiff in withstanding defendant’s motion for summary judgment did exist. The trial court never resolved the dispute regarding whether plaintiff had informed Professor Slovenko that he had a hearing problem when plaintiff requested to tape the class.

With respect to a motion for summary judgment on the ground that there is no genuine issue as to any material fact, the court should give the benefit of any reasonable doubt to the opposing party and should not grant summary judgment unless it finds that "it is impossible for the claim * * * to be supported at trial because of some deficiency which cannot be overcome”. Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973). Inferences are to be drawn in favor of the one opposing the motion, and the court is to consider the affidavits, pleadings, depositions, and other documentary evidence submitted by the parties when determining whether or not to grant summary judgment. Gamet v Jenks, 38 Mich App 719, 723; 197 NW2d 160 (1972), Sanders v Clark Oil Reñning Corp, 57 Mich App 687; 226 NW2d 695 (1975). In ruling that no issues of fact exist, the court must be careful to avoid substituting a trial by affidavit and deposition for a trial by jury, and the court is not allowed to make findings of fact nor to weigh the credibility of affiants or deponents. Northern Plumbing & Heating, Inc v Henderson Brothers, Inc, 83 Mich App 84; 268 NW2d 296 (1978), lv den 405 Mich 845 (1979).

Although the documentary evidence seems to indicate that plaintiff may not have informed the law school administration adequately of his handicap and his need to tape-record his classes, it is our opinion that a factual issue did exist as to whether a discriminatory act was, indeed, committed by defendant board. Admittedly, the issue is close. However, drawing any inferences in favor of plaintiff leads us to the conclusion that the grant of summary judgment under GCR 1963, 117.2(3) was improper.

The third issue on appeal is closely related to the issue just resolved. Although plaintiff frames this issue differently, his claim, in essence, is that, as a matter of law, Wayne State University violated the HCRA. This issue is addressed to the grant of summary judgment under GCR 1963, 117.2(1), that is, that the opposing party has failed to state a claim upon which relief may be granted. A motion for summary judgment under GCR 1963, 117.2(1) is to be tested only by the pleadings. Todd v Biglow, 51 Mich App 346, 349; 214 NW2d 733 (1974), lv den 391 Mich 816 (1974). In examining those pleadings, a court must accept as true the well-pleaded facts contained therein. Weckler v Berrien County Road Comm, 55 Mich App 7; 222 NW2d 9 (1974). The test is whether the plaintiff’s claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development possibly can justify a right to recovery. Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426, 431; 202 NW2d 577 (1972). Where the resolution of a legal issue may depend greatly upon the factual context, summary judgment on the pleadings is never proper.

In Dady v Rochester School Board, 90 Mich App 381; 282 NW2d 328 (1979), this Court upheld a lower court’s grant of summary judgment for failure to state a claim upon which relief could be granted where the plaintiff contended that the HCRA imposed a duty on a school board to provide affirmative medical services — administering periodic catheterization during school hours to a child who required such treatment as a condition to attending school. This Court held that the HCRA imposes no affirmative duty on a school to extend such services to the handicapped.

This Court does not agree with defendant’s contention that Dady is analogous to the case at bar. The instant case does not involve a claim that Wayne State University was duty bound to undertake an affirmative program with respect to treating or alleviating a student’s handicap. Plaintiff’s claim in the instant action implies that Wayne State University had a passive duty not to interfere with "the full utilization of or benefit from the institution” under MCL 37.1402; MSA 3.550(402) by preventing a hearing-impaired student from tape-recording lectures if a student otherwise could not benefit adequately from class lectures. The situation is analogous to the duty to permit blind students to use Seeing Eye dogs in a university building. (See Department of Health and Human Services regulation 45 CFR § 84.1 et seq. [1980], interpreting the Rehabilitation Act of 1973, 29 USC 794).

We find defendant’s total reliance on Dady misplaced. Recognizing that Dady is the only case in which this Court has spoken on the mandates of the HCRA, we nevertheless find untenable defendant’s conclusion that even if plaintiff adequately had made the university aware of his handicap, the university’s alleged refusal to allow him to tape class lectures would not violate the HCRA. Arguing that the act places no affirmative duties on the university to accommodate the handicapped, defendant concludes that, by passage of HCRA, the Legislature intended to "permit”, but not require, an educational institution to adopt affirmative action policies regarding the handicapped. Defendant argues that granting plaintiffs request to tape lectures would have given plaintiff a preference not granted other students. We cannot accept defendant’s convoluted and somewhat callous interpretation of the act. Indeed, Dady does not go so far. Dady, supra, 390.

It is our belief that the balance to be struck herein is whether the burden to the institution in providing plaintiff with the aid he needs to compete equally outweighs his individual right to such assistance. In Dady, the burden on the institution was found to be too high. However, the Dady Court was clear in stating that:

"[0]ur opinion should not be interpreted as giving school districts a carte blanche to limit special education programs to benefit those children who may be accommodated most conveniently and economically.” Id., 390-391.

In our view, an inflexible policy on the part of the university administration or its professors forbidding deaf or hearing-impaired students from undertaking those measures necessary to permit them to benefit from class lectures would be violative of the HCRA, § 402(b), supra. Allowing the use of an adaptive device such as a tape recorder is not analogous to requiring the university to provide medical or other services to permit a handicapped student to attend school. A tape recorder is the least obtrusive device which plaintiff could have used, and is, in fact, the only device adapted to his purpose.

Although in no way binding upon this Court, we find instructive a regulation of the Department of Health and Human Services to be used in connection with § 504 of the Rehabilitation Act of 1973, 29 USC 794. This regulation is entitled "Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving Benefits from Federal Financial Assistance”. In subpart E — "Postsecondary Education” the following regulation was promulgated:

"b) Other rules. A recipient to which this subpart applies may not impose upon handicapped students other rules, such as the prohibition of tape recorders in classrooms or of dog guides in campus buildings, that have the effect of limiting the participation of handicapped students in the recipient’s education program or activity.” 45 CFR § 84.44 (1980). (Emphasis supplied.)

Our conviction that summary judgment was improper under GCR 1963, 117.2(1) in that plaintiff has stated a claim under which relief could be granted, coupled with our hesitation regarding the propriety of the grant of summary judgment under GCR 1963, 117.2(3), leads us to the conclusion that the grant of summary judgment in the instant case was not proper.

We note the contradiction in the trial court’s grant of accelerated judgment on the ground that it had no jurisdiction, and the grant of summary judgment on plaintiff’s claims under GCR 1963, 117.2(1) and (3). Although we do not believe that these conflicting judgments have prejudiced either party, we reiterate our holding that jurisdiction in the circuit court was proper and that, therefore, the granting of accelerated judgment was error.

Upon remand, if this case proceeds to trial, a determination of the cause of action should be made on the basis of facts occurring only during the fall semester of 1977. Furthermore, since plaintiff brought his case under the HCRA, the only damages to which plaintiff shall be entitled, if any, are those recoverable under that act.

Reversed and remanded in accordance with this opinion. We do not retain jurisdiction.

M. J. Kelly, J., concurred.