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Shireman v. City of Kalamazoo11/16/2001
UNPUBLISHED
Plaintiff appeals as of right from the trial court's grant of summary disposition under MCR 2.116(C)(7) and MCR 2.116(C)(10) in this employment discrimination case. We affirm.
Plaintiff began working for defendant as a firefighter in 1957, and later became a captain. In 1982, the police and fire departments merged into a single public safety department. Existing personnel were required to cross train, and plaintiff became a lieutenant in the public safety department. John Ross, formerly with the police department, became the chief of the public safety department. There is evidence of animosity between the two former departments and the subsequent rankings they received in the new public safety department.
Plaintiff suffered a total of four hernias during his employment: in 1974, 1980, 1982, and 1985. The fourth hernia that plaintiff suffered in 1985 led to his application for a duty disability pension. Plaintiff submitted his application to defendant's pension board and asked to retire effective December 24, 1985. On March 20, 1986, the pension board determined that plaintiff could retire on a duty disability pension, but that the date of retirement had to be determined depending on the exhaustion of his other benefits. A dispute regarding worker's compensation benefits was subsequently resolved, and plaintiff informed the pension board that he would name his retirement date after the worker's compensation benefits were exhausted. The pension board, in turn, informed plaintiff that he would have to resubmit his retirement application within ninety days of the date he planned to retire.
In early 1988, plaintiff decided that he could return to work, and informed the union's president that he planned to return to work rather than retire. In a memorandum dated March 11, 1988, however, Chief Ross asked the pension board to place plaintiff on medical retirement based on the previous finding that he was medically disabled. In September 1988, the pension board decided to place plaintiff on retirement status. This lawsuit ensued on August 23, 1991.
This case has had a lengthy appellate history, having been in this Court on two separate occasions and in the Supreme Court once. Following remand to the trial court by the Supreme Court for further proceedings, defendant sought summary disposition with regard to plaintiff's claims of handicap and age discrimination.
The trial court granted defendant's motion for summary disposition in an opinion and order dated September 23, 1999. The trial court ruled that plaintiff voluntarily terminated his employment because he did not intend to return to active employment, but only did so when he realized that he pension benefits would not be as favorable as he had hoped. The trial court also ruled that plaintiff was not qualified for re-employment in 1988 because he was no longer certified as a public safety officer. Lastly, the trial court ruled that plaintiff failed to establish any genuine issues of material fact with respect to the age and handicap discrimination claims because there was no evidence that these were factors in the pension board's determination to place plaintiff on medical retirement. The final order denying plaintiff's motion for reconsideration was entered on March 1, 2000.
The trial court granted summary disposition under MCR 2.116(C)(7) and (10). We review de novo a trial court's ruling on a motion for summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Under both MCR 2.116(C)(7) and (10), the pleadings, affidavits, admissions, depositions, and other documentary evidence filed in the action or submitted by the parties must be considere
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