Brown County v. Labor & Industry Review Com'n
| Decision Date | 27 February 1990 |
| Docket Number | Nos. 89-1255,89-1256,s. 89-1255 |
| Citation | 154 Wis.2d 868,455 N.W.2d 678 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. BROWN COUNTY, Petitioner-Appellant, v. LABOR & INDUSTRY REVIEW COMMISSION and Alan J. Phillips, Respondents. BROWN COUNTY, Petitioner-Appellant, v. LABOR & INDUSTRY REVIEW COMMISSION and Annette F. Grinkey, Respondents. |
| Court | Wisconsin Court of Appeals |
APPEAL from an order and a judgment of the circuit court for Brown county: RICHARD G. GREENWOOD, Judge.
Circuit Court, Brown County.
AFFIRMED.
Before CANE, P.J., and LAROCQUE and MYSE, JJ.
Brown County appeals a circuit court order and judgment affirming two decisions of the Labor and Industrial Review Commission. LIRC concluded that Alan Phillips and Annette Grinkey, applicants for positions as traffic officers with the Brown County Sheriff's Department, were handicapped and that the county's failure to hire them was discriminatory under the Fair Employment Act. The county argues that LIRC improperly excluded two scientific studies from the evidence, that certain findings of fact made by LIRC are unsupported by substantial evidence, and that LIRC applied an improper standard when determining if its refusal to hire was legitimate. We reject the county's arguments and affirm the order and judgment.
After applying for traffic officer positions and passing various preliminary tests, Phillips and Grinkey were given vision examinations from which it was determined that Phillips' uncorrected vision in each eye was 20/80 and Grinkey's was 20/200. Both wore glasses to correct their vision to 20/20. The county informed Phillips and Grinkey that they would not be hired because they failed the vision examinations. The county requires traffic officer applicants to have uncorrected vision of at least 20/40 in the better eye and 20/100 in the other, correctable to 20/20 in the better eye and 20/40 in the other.
Phillips and Grinkey filed complaints with the Equal Rights Division of the Department of Industry, Labor and Human Relations. During combined hearings, the county submitted, among other things, a study conducted for the Department of California Highway Patrol entitled "Entry Level Vision Requirements Validation Study." Phillips and Grinkey objected to its admission. The administrative law judge ruled that the study was inadmissible hearsay. On the merits of the action, the judge upheld the county's vision standard for applicants who wear glasses, but found that the county discriminated against Phillips and Grinkey on the basis of handicap by failing to evaluate their abilities on an individual basis and by failing to accommodate their handicaps by allowing them to correct their vision with soft contact lenses.
While these cases were being reviewed by LIRC, the county submitted an article entitled "Uncorrected Visual Acuity Standards for Police Applicants" and requested a remand to consider this "newly discovered" evidence. LIRC denied this request. In its decision on the merits, LIRC concluded that the county illegally discriminated against Phillips and Grinkey by failing to consider their abilities on an individual basis. LIRC did not rely on the county's alleged duty to accommodate the applicants' handicaps by allowing them to wear soft contact lenses. The county appealed, and the circuit court affirmed LIRC's findings of fact and conclusions of law.
This case arises under the procedures established by Wisconsin's Fair Employment Act, sec. 111.31 to 111.395, Stats. (1983-84). The Act prohibits employers from discriminating on the basis of handicap. Sec. 111.321, Stats. (1983-84). Refusal to hire, however, is not discriminatory if the handicap is reasonably related to the individual's ability to perform. 1 Sec. 111.34(2)(a), Stats.
We first address the county's argument that two documents were inappropriately excluded from the evidence. The document entitled "Entry Level Vision Requirements Validation Study" was excluded as hearsay, but the county cites sec. 227.08(1), Stats. (1983-84), now sec. 227.45(1), Stats., for the proposition that administrative agencies are not bound by common law or statutory rules of evidence and that reasonable probative value should be the only criterion for admissibility. See also Pieper Elec., Inc. v. LIRC, 118 Wis.2d 92, 97, 346 N.W.2d 464, 467 (Ct.App.1984). However, even though administrative proceedings are not bound by the same strict rules of evidence that govern trials, some evidentiary restrictions may apply, including those concerning hearsay not subject to a recognized exception. Village of Menomonee Falls v. DNR, 140 Wis.2d 579, 610, 412 N.W.2d 505, 518 (Ct.App.1987).
The county has failed to establish that the document falls within an exception to the hearsay rule. It fails as a scientific treatise under sec. 908.03(18), Stats., because no foundation was laid that the author is recognized as an expert in the subject. 2 It fails as a public record or report under sec. 908.03(8) because it was not authenticated. 3 Finally, because the county failed to argue admissibility under the catchall exception of sec. 908.03(24) before the administrative law judge and LIRC, this issue was not properly preserved for review. 4
The document entitled "Uncorrected Visual Acuity Standards for Police Applicants" was submitted to LIRC after the record was closed. LIRC stated that this new document did not contain sufficient evidence to alter its decision. The county asserts that remand is necessary to require LIRC to consider this evidence. The taking of additional testimony on a petition for review is a matter for the sole discretion of LIRC. Appleton Elec. Co. v. Minor, 91 Wis.2d 825, 831, 284 N.W.2d 99, 101 (1979). Only a flagrant abuse of discretion permits a determination that LIRC acted in excess of its powers by denying a request to reopen the record. Id.
Although not received in evidence, the document is part of the record. The introduction refers to publications by Dr. James Sheedy and states that "[t]his report strengthens Sheedy's recommendations...." The Sheedy publications referred to had been received in evidence at the hearing and are also a part of the record. LIRC had already considered the Sheedy publications. It then determined that the new document did not contain sufficient evidence to change its decision. We cannot conclude that LIRC abused its discretion by refusing to admit the new document.
We next address the county's argument that certain findings of fact made by LIRC are unsupported. When reviewing LIRC's factual determinations, we will uphold them as long as they are supported by substantial evidence. Sec. 227.57(6), Stats. If the evidence will sustain two conflicting but reasonable views, we are bound by the view that LIRC chose to accept. Holy Name School v. DILHR, 109 Wis.2d 381, 386, 326 N.W.2d 121, 124 (1982).
First, the county argues that LIRC's findings that neither Phillips nor Grinkey posed a greater safety risk than a 20/20 sighted person when driving a car, defending themselves or shooting a gun are mere speculation. It asserts that only testimony of an expert on law enforcement vision standards can support findings of future risk, that its expert was the only qualified witness to make such an opinion and that its expert's testimony contradicted LIRC's finding that there was no greater safety risk.
LIRC's findings are supported by the record. Expert opinion testimony is not necessary to determine that Phillips and Grinkey did not pose increased safety risks. See White v. Leeder, 144 Wis.2d 684, 687, 424 N.W.2d 722, 724 (Ct.App.1988) (), rev'd on other grounds, 149 Wis.2d 948, 440 N.W.2d 557 (1989). There was testimony that a second pair of glasses kept in the squad car would solve the problem caused by glasses being broken or lost rendering the officer unable to drive or causing unsafe driving.
Traffic officers and experts in the field of police science testified that situations where force is necessary, involving both assaults and shooting a gun, most often occur at close range. Dr. Timothy Pease, a doctor of optometry, testified that Phillips and Grinkey could function effectively as traffic officers when wearing glasses and that they could function effectively in an emergency without glasses. Both Phillips and Grinkey testified that their glasses had never caused them problems. Phillips testified that he qualified at the weapons range without wearing glasses. Grinkey testified that during target practice, she received the same score without the use of her glasses as she usually received with her glasses.
The county next argues that LIRC's finding that failure to hire was based on a general rule rather than on individual abilities is unsupported. It asserts that the fact that Phillips and Grinkey were given individual eye examinations is sufficient and that a job-related minimum physical qualification is not, as a matter of law, a general rule. We disagree. The eye examinations accomplished nothing more than to verify that Phillips' and Grinkey's vision did not meet its general rule requiring 20/40 uncorrected vision.
The county also argues that LIRC's finding that Phillips and Grinkey demonstrated a general ability to perform the duties of a traffic officer is irrelevant, misleading and not supported by the evidence. Under sec. 111.34(2), Stats. (1983-84), Phillips' and Grinkey's abilities to adequately undertake the job-related responsibilities of...
To continue reading
Request your trial