Bogue v. Better-Bilt Aluminum Co.

• Decision Date: 11 January 1994
• Docket Number: No. 1,CA-CV,BETTER-BILT,1
• Citation: 179 Ariz. 22,875 P.2d 1327
• Parties: , 3 A.D. Cases 137, 4 NDLR P 353 Wayne BOGUE, Plaintiff-Appellant, v.ALUMINUM CO., Defendant-Appellee. 91-0536.
• Court: Arizona Court of Appeals

Page 1327

875 P.2d 1327

179 Ariz. 22, 3 A.D. Cases 137, 4 NDLR P 353

Wayne BOGUE, Plaintiff-Appellant, v. BETTER-BILT ALUMINUM CO., Defendant-Appellee.

No. 1 CA-CV 91-0536.

Court of Appeals of Arizona Division 1, Department C.

Jan. 11, 1994.

Review and Cross-Petition for

Review Denied July 6, 1994.

[179 Ariz. 24] Rosemary Cook, Phoenix, for plaintiff-appellant.

Cornelius & Collins by Charles Hampton White, Nashville, TN, and Musgrove and Drutz, P.C. by James B. Musgrove, Mark W. Drutz, Grant K. McGregor, Prescott, for defendant-appellee.

OPINION

TOCI, Presiding Judge.

Wayne Bogue sued Better-Bilt Aluminum Company, Inc. ("Better-Bilt") for handicap discrimination under the Arizona Civil Rights Act ("ACRA") alleging that Better-Bilt did not hire him because it perceived him to have a hearing impairment. Bogue appeals from the trial court's grant of summary judgment and award of attorneys' fees in favor of Better-Bilt.

We must decide whether a job applicant may be deemed "handicapped" under the ACRA although he claims that he is not in fact handicapped. In order to resolve this question we must decide several subordinate issues: (1) whether an applicant who does not have an actual "physical impairment" under the ACRA may nevertheless qualify for relief if he is regarded by the employer as having such an impairment; (2) whether and to what extent an actual or perceived physical impairment must restrict employability in order to qualify an individual for relief under the ACRA; and (3) whether the ACRA denies relief to a job applicant who fails to advise his prospective employer that his physical condition constitutes a handicap under the ACRA.

Addressing the above issues, we reverse the summary judgment in favor of Better-Bilt. We conclude that a disputed issue of fact exists about whether Better-Bilt rejected Bogue's job application because it perceived his ear condition to be a handicap. We hold that: (1) the ACRA implicitly prohibits discrimination against individuals who have a perceived handicap as well as explicitly prohibiting discrimination against individuals who have an actual handicap; (2) to qualify for relief under the ACRA, the actual or perceived impairment must do more than simply disqualify an individual from employment in a single job--the actual or perceived impairment must constitute a substantial restriction or limitation on that individual's general employability; (3) the question of whether an applicant is physically impaired and whether that physical impairment substantially restricts the applicant's general employability is a question of fact; and (4) an applicant is only required to give notice to a prospective employer of the physical condition or impairment that may give rise to a "handicap"--the applicant need not actually state that he has a handicap as defined by the ACRA.

We must also decide whether the trial court erred: (1) in granting summary judgment against Bogue on his claim of wrongful failure to hire; (2) in denying Bogue's motion to amend his complaint to include a count of negligence; (3) in awarding Better-Bilt attorneys' fees; and (4) in denying Bogue's motion to continue oral argument on Better-Bilt's motion for attorneys' fees.

We resolve these issues as follows. We conclude that because Arizona does not recognize the tort of wrongful failure to hire based on a violation of the public policy embodied in the ACRA, the trial court correctly granted summary judgment on this issue. Also, we conclude that because there is no authority to support Bogue's claim of negligence, the trial court did not abuse its discretion in denying Bogue's motion for leave to amend his complaint. Additionally, because we reverse the trial court's grant of summary judgment in favor of Better-Bilt on the handicap discrimination claim, Better-Bilt is no longer the prevailing party on the major issue in this lawsuit. Accordingly, we vacate the award of attorneys' fee in favor of Better-Bilt. Finally, we need not reach any conclusion on whether the trial court erred in denying Bogue's motion to continue oral argument because our reversal of the award of attorneys' fees renders this issue moot.

I. FACTUAL AND PROCEDURAL HISTORY

In reviewing the trial court's grant of summary judgment, we view the evidence in a light most favorable to Bogue. Riley, Hoggatt & Suagee, P.C. v. English, 177 Ariz. 10, 12, 864 P.2d 1042, 1044 (Ariz.Sup.Ct.1993) (facts viewed in a light most favorable to the party against whom summary judgment was taken). He must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Do by Minker v. Farmers Ins. Co., 171 Ariz. 113, 115, 828 P.2d 1254, 1256 (App.1991).

Bogue applied for a job as an assembler with Better-Bilt in Prescott Valley. As part of the application process, Erica Schneider, an occupational health nurse employed by Better-Bilt, conducted a physical examination of Bogue. In completing the health form, Bogue told Schneider that he had had the mastoid process of the temporal bone scraped and that his left ear occasionally drained light green or yellow fluid. Schneider wrote on the form: "Left ear occasionally drains--light green-yellow occasionally. Hole in [tympanic membrane]--had mastoid scraped (7 yrs old)." Schneider informed Sharon Peckinpaugh, senior personnel assistant for Better-Bilt, that she believed Bogue was not eligible for employment because he had an active ear infection that would prevent the wearing of ear plugs.

When Bogue called to inquire about his application, Better-Bilt told him that everything was fine and that it would notify him when the company had an opening. He later learned that Better-Bilt had hired several people since the date of his physical examination.

Believing that he was denied employment due to his age, Bogue contacted the Arizona Civil Rights Division ("ACRD") and filed an age discrimination claim against Better-Bilt. In response to the age discrimination claim, Charles Hampton White, a Nashville, Tennessee attorney for Better-Bilt, wrote a letter to the ACRD that contained the following statement:

Wayne Bogue on September 20, 1988, applied for a job at Better-Bilt Aluminum Products Co., Prescott, Arizona. During Bogue's process of applying for a job, he was asked to fill out a medical/occupational history. He did so and indicated in response to question number 15 that he had a problem with drainage from his left ear, which condition had developed when he was seven years of age occasioned by the scraping of a mastoid. Since Bogue would have been required to wear ear plugs, as an employee of Better-Bilt, from time to time, while he worked in various areas of the plant, Better-Bilt determined that Bogue's health condition would constitute a probable hazard to him and to fellow workers because of the necessity of wearing ear plugs. In years past, Better-Bilt had experienced difficulty with employees who have hearing impairments becoming disoriented or losing their sense of balance when required to wear ear plugs. Wayne Bogue was not employed by Better-Bilt Aluminum Products for this reason.

(Emphasis added.)

Based on this letter, the ACRD suggested that Bogue dismiss his claim of age discrimination and file a new charge alleging handicap discrimination. After Bogue refiled, the ACRD issued findings of fact indicating there was reasonable cause to believe that Better-Bilt had violated the ACRA by failing to employ Bogue because of a handicap.

Bogue filed a complaint against Better-Bilt alleging failure to hire due to a handicap and perceived handicap in violation of Ariz.Rev.Stat.Ann. ("A.R.S.") section 41-1463 (1992). Bogue later amended the complaint to add a claim for wrongful failure to hire in violation of public policy.

Bogue then moved for summary judgment arguing that Better-Bilt had failed to hire him because of a handicap or perceived handicap and that Better-Bilt's failure to hire him violated public policy as embodied in the ACRA. Better-Bilt responded to Bogue's motion and filed a cross-motion for summary judgment. Before the court heard argument on the motions for summary judgment, Bogue moved to amend his complaint to add a claim that Better-Bilt was negligent because it had failed to advise him that he would be hired if he provided a physician's note advising that Bogue could work with ear plugs or muffs. Without stating its reasons, the trial court denied Bogue's motion for summary judgment and motion to amend complaint and granted Better-Bilt's cross-motion for summary judgment.

Better-Bilt sought an award of its attorneys' fees under A.R.S. section 12-341.01(A) (1992), as the prevailing party in an action arising out of contract, and also on the theory that, under A.R.S. section 41-1481(J) (1992), Bogue's "action is factually and legally groundless." Without stating its reasons, the trial court agreed. It awarded Better-Bilt attorneys' fees of $6,000 and costs of $412.12. Bogue filed a timely notice of appeal from the judgment.

II. DISCUSSION

A. Handicap Discrimination Claim

Bogue argues that although he is free from any physical impairment, Better-Bilt discriminated against him if it perceived him as handicapped within the meaning of A.R.S. section 41-1461(4) (1992) and denied him employment on that basis. We agree. We conclude that the ACRA implicitly prohibits discrimination against individuals with a perceived handicap. Thus, the trial court erred in granting summary judgment against Bogue on his handicap discrimination claim.

1. Definition of Handicap

This matter is governed by the ACRA provision which states that it is an unfair employment practice for an employer:

To fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment because of such individual's race, color, religion, sex, age, handicap or national...