Burris v. City of Phoenix

• Decision Date: 24 August 1993
• Docket Number: CA-CV,No. 1,1
• Citation: 179 Ariz. 35,875 P.2d 1340
• Parties: , 63 Empl. Prac. Dec. P 42,761, 62 USLW 2231, 2 A.D. Cases 1251, 4 NDLR P 147 Ronald BURRIS and Earlene Burris, husband and wife, and The State of Arizona, ex rel., Grant Woods, Attorney General, and the Civil Rights Division of the Arizona Department of Law, Plaintiffs-Appellants, Cross-Appellees, v. CITY OF PHOENIX, a body politic, Defendant-Appellee, Cross-Appellant. 90-0545.
• Court: Arizona Court of Appeals

Page 1340

875 P.2d 1340

179 Ariz. 35, 63 Empl. Prac. Dec. P 42,761, 62 USLW 2231,

2 A.D. Cases 1251, 4 NDLR P 147

Ronald BURRIS and Earlene Burris, husband and wife, and The State of Arizona, ex rel., Grant Woods, Attorney General, and the Civil Rights Division of the Arizona Department of Law, Plaintiffs-Appellants, Cross-Appellees, v. CITY OF PHOENIX, a body politic, Defendant-Appellee, Cross-Appellant.

No. 1 CA-CV 90-0545.

Court of Appeals of Arizona Division 1, Department D.

Aug. 24, 1993.

Review and Cross-Petition for

Review Denied July 6, 1994. ^*

[179 Ariz. 37] Grant Woods, Atty. Gen. by Heather Sigworth, Sp. Asst. Atty. Gen., Judy Drickey-Prohow, Tucson, and Marton & Hall, P.A. by Kraig J. Marton and Terry F. Hall, Phoenix, for appellants/cross-appellees.

Lewis and Roca by Susan M. Freeman, Richard S. Cohen and Jane E. Reddin, Phoenix, for appellee/cross-appellant.

Ryley, Carlock & Applewhite, P.A. by Linda H. Miles and Michael D. Moberly, Phoenix, for amicus curiae--City of Bisbee.

Barbara Hoffman, Silver Spring, MD, for amicus curiae--Nat. Coalition for Cancer Survivorship.

OPINION

CLABORNE, Judge.

Appellant Ronald Burris ("Burris") applied for a fire fighter position with Appellee City of Phoenix ("the City"). Burris took and passed all of the required tests, and the City offered him the job as a fire fighter. However, later the City refused to hire Burris because he had a history of cancer, though he did not have the disease at the time.

Burris sued the City, and the trial court ruled that the City had discriminated against Burris on the basis of handicap and ordered the City to hire him as a fire fighter. Burris appealed from other rulings of the trial court, and the City cross-appealed from the hiring order.

We affirm the trial court's findings in all respects but two. Because we believe the trial court erred when it considered the evidence of settlement and because we believe the trial court erred in denying a request by Burris for an injunction against future use of discriminatory physical examination standards, we reverse on these two grounds.

I

In early 1987, Burris applied for a fire fighter position with the City. He took and passed written and physical agility tests, and he was rated "one plus" (one of the highest ratings) on his oral interview, but he was not offered a fire fighter recruit or trainee position. After some of the selected applicants dropped out, the Phoenix Fire Department offered Burris a fire fighter trainee position. ¹ As a result of this offer, Burris filled out various employment and payroll forms, went to the City Occupational Health Center for cardiac stress testing, and was given a physical examination. At the time of the physical, no one told Burris that the examination was conducted for the Arizona Public Safety Retirement System. ²

While Burris was at the doctor's office before his physical examination, he indicated on a medical history form that he had a history of cancer. The record is clear that Burris had testicular cancer and was treated surgically (involving the removal of a testicle) and by radiation. The cancer did not recur, and according to Burris's doctor, Burris was completely cured of cancer. The City's doctor reviewed Burris's history form and told him that due to his history of cancer, the City would not hire him, that other people in similar circumstances had been rejected, and that it was the policy and nothing could be done about it. Although the doctor said there was no reason to continue the examination, Burris insisted and the doctor proceeded with the physical. The doctor found that Burris had a physical impairment, a missing right testicle, but that there was nothing that would physically prevent Burris from doing the work of a fire fighter. The reason the doctor indicated that Burris was medically rejected for employment was because he had a history of cancer, and the medical standards the doctor applied dictated mandatory rejection of any applicant with a history of cancer.

Burris was told by Chief Dodd of the fire department that he had failed the physical examination and that the City could not hire him.

In December, 1987, Chief Dodd told Burris that he could be interviewed again. Following the interview, a captain on the fire department who was on the interview board told Burris that he would not be considered for a position because he had not done as well in the oral interview as he had done in the previous interview. He also told Burris that all the board members had been told before the second interview that he had a history of cancer.

Thereafter, Burris filed a charge of handicap discrimination against the City with the Arizona Civil Rights Division. The statutorily required conciliation efforts failed, see Ariz.Rev.Stat.Ann. ("A.R.S.") section 41-1481(B) (1992), and, after the Civil Rights Division told Burris he could sue, a lawsuit was filed against the City. His complaint alleged a violation of the Arizona Civil Rights Act ("ACRA") by discriminating against him on the basis of handicap. He asked for an injunction enjoining the City from engaging in such practices, an order to allow him to be hired as a fire fighter recruit, an award of back pay with fringe benefits including seniority from the date of the City's original offer to hire him, "front pay," ³ damages for mental distress, and other compensatory damages. The Attorney General was allowed to intervene.

A trial was held with an advisory jury. The court held that there was no tort of wrongful failure to hire. The trial court further ruled that "the City of Phoenix violated the ACRA in that they failed to hire Mr. Burris solely because of their perception that he was handicapped, and not because of any legitimate legal basis." The trial court ordered the City to hire Burris as a fire fighter trainee/recruit and denied Burris's claims for seniority, back pay and front pay. Burris was awarded attorney's fees.

The City appealed from the trial court's orders and final judgment. Burris and the State cross-appealed. This Court realigned the parties to designate Burris and the State as Appellants/Cross-Appellees and the City as Appellee/Cross-Appellant.

II

This case cannot be resolved without first determining whether a history of cancer is a "handicap," according to ACRA. In this respect, the trial court said:

THE COURT FINDS that the City of Phoenix violated the ACRA in that they failed to hire Mr. Burris solely because of their perception that he was handicapped, and not because of any legitimate legal basis.

....

Court and counsel have argued over the definition of "handicap." The legislature seems to favor a narrow definition, while the Appellate Courts and the Federal system opt for a more liberal definition. In this case, the City treated Mr. Burris as if he were handicapped. They thought and perceived him to have a limitation when they accepted the Pension Board's standards, and then refused to hire him.

To now say that they are vindicated because he doesn't fall into the Statutory definition of handicap, is not appropriate.

Equity and public policy will not allow such a result.

The City argues that a history of cancer does not meet the statutory definition of "handicap" and that even if it does, the trial court erred in expanding the definition to include individuals with a "perceived" handicap. A "handicap" is defined in A.R.S. section 41-1461(4) (1992), as follows:

4. "Handicap" means a physical impairment that substantially restricts or limits an individual's general ability to secure, retain or advance in employment....

The statute which makes an employment practice unlawful says:

B. It is an unlawful employment practice for an employer:

1. 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 origin.

A.R.S. § 41-1463(B)(1) (1992) (emphasis added).

We commence with some general rules. "The Arizona Civil Rights Act is remedial legislation designed to eliminate discrimination based on race and other classifications," including handicaps. Arizona Civil Rights Div. v. Hughes Air Corp., 139 Ariz. 309, 313, 678 P.2d 494, 498 (App.1984). Remedial statutes should be liberally construed. Id. Whether cancer is a handicap in Arizona is a matter of law. See Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 538 A.2d 794 (1988); Babcock & Wilcox Co. v. Civil Rights Comm'n, 31 Ohio St.3d 222, 510 N.E.2d 368 (1987); Hazlett v. Martin Chevrolet, Inc., 25 Ohio St.3d 279, 496 N.E.2d 478 (1986); Consolidated Freightways, Inc. v. Cedar Rapids Civil Rights Comm'n, 366 N.W.2d 522 (Iowa 1985).

A "handicap" under section 41-1461(4) entails a physical impairment. The word "impair" is defined as "to damage or make worse by or as if by diminishing in some material respect." Webster's Ninth New Collegiate Dictionary 603 (1984). Defendant's cancer, which caused the permanent loss of a testicle, meets this definition, liberally construed.

To be a handicap under the statute, the condition must also substantially restrict or limit an individual's general ability to secure, retain, or advance in employment. Burris introduced expert testimony at trial regarding difficulties cancer sufferers have in job hiring and promotions. The expert testified that a history of cancer affects an individual's ability to be hired, restricts his or her employability, and likely would have a lingering effect on the ability to progress with an employer. He based that opinion on his experience and research that show that employers have numerous misconceptions about cancer regarding the effect of the disease even on people who no longer have cancer. An article in evidence stated that approximately twenty-five percent of the five million people in the United States with a...