City of Clayton v. Missouri Com'n on Human Rights, 59818
| Decision Date | 17 December 1991 |
| Docket Number | No. 59818,59818 |
| Citation | 821 S.W.2d 521 |
| Parties | 60 Empl. Prac. Dec. P 41,893, 2 A.D. Cases 995, 2 NDLR P 181 CITY OF CLAYTON, Plaintiff/Respondent, v. The MISSOURI COMMISSION ON HUMAN RIGHTS, et al., Defendants/Appellants. |
| Court | Missouri Court of Appeals |
William L. Webster, Atty. Gen., Jerry B. Buxton, Asst. Atty. Gen., Jefferson City, for defendants/appellants.
Archie Wimmer Carr, Norman C. Steimel, II, Tremayne, Lay, Carr, Bauer & Nouss, Clayton, for plaintiff/respondent.
The Missouri Commission on Human Rights (Commission) appeals from a circuit court reversal of its order in an employment discrimination case. We reverse and thereby reinstate the order of the Commission.
On January 21, 1985, Sylvester Wayer was discharged from his position as a maintenance worker with the City of Clayton (City). He filed a complaint with the Commission alleging the City had discriminated against him because of his arteriosclerotic heart disease, which he characterized as a "handicap" under § 296.020, RSMo 1978. 1 After a hearing, the Commission found in his favor. The Commission awarded Wayer $3,769.99 plus 9% interest as back pay for lost wages; and $1,552.57 plus 9% interest as compensation for the value of lost fringe benefits. It ordered Wayer reinstated with retroactive seniority and benefits. In addition, it ordered City to cease and desist from discriminating against its employees on the basis of their handicap; to make reasonable accommodations for its handicapped employees and applicants so that they may perform essential functions of their jobs; and to display the Commission's "Discrimination in Employment" poster in a conspicuous location in each of its four buildings.
The circuit court reversed and ordered the Commission to pay court costs. 2 We review the decision of the Commission, not the circuit court. Laclede Cab v. Mo. Com'n. on Human Rights, 748 S.W.2d 390, 393 (Mo.App.1988).
We must affirm the decision of the Commission unless its findings are not supported by competent and substantial evidence on the record; its decision is arbitrary, capricious or unreasonable; or unauthorized by law or any grounds stated in § 536.140.2, RSMo 1978. St. Louis Co. Board of Election Commissioners v. Mo. Com'n. on Human Rights, 668 S.W.2d 592, 594 (Mo.App.1984).
A hearing was held at which substantial testimony was presented and numerous exhibits were received into evidence. The hearing examiner made numerous findings of fact and conclusions of law. The Commission adopted them. The evidence revealed the following:
Clayton is the county seat of St. Louis County and a commercial center. Four buildings it owned were maintained by its maintenance crew. They were the city hall, the police station, the community center, and the garage. The city hall, police station and community center were in close proximity. All of the buildings were within seven blocks of each other.
The city had five building maintenance workers. One maintenance man was assigned to the police station and garage. Two men each were assigned to the city hall and community center. The maintenance crew was part of the public works department. The immediate supervisor of the maintenance crew was Jack Schenck. The assistant supervisor was Al Hebel. Schenck reported to Eugene Peterson, director of public works for the City, and indirectly to Gary Schneidpeter, the street superintendent. Peterson reported to Lee Evett, the city manager.
Wayer worked for the City as a building maintenance worker from January 1982 until termination in January 1985. At the time of his termination, he was permanently assigned to the community center. The other maintenance man assigned to the community center was Rick Lentz, then in his late twenties. The duties of a maintenance worker at the center, according to City, included:
... cleaning, mopping, buffing, washing windows, painting, minor electrical work, plumbing, setting up tables and chairs and breaking down tables and chairs in meeting rooms, in the winter shovelling sidewalks, steps and the general area around the Community Center, in fair weather policing the area, cleaning up in the grass areas and around the parking lot, changing light bulbs, washing windows, setting up the meeting rooms for business meetings, banquets, luncheons, depending on the room anywhere from 150 to 200 chairs. In setting up the rooms the tables to be set up are 85 lb. formica top tables, 6 feet by 3 feet, smaller wood grained tables 6 feet by 30 inches, and card tables 3 feet by 3 feet. These setups are done three or four times a week. There are 22 of the formica top tables weighing 85 lbs., there are 25 of the 6 foot by 30 inch tables weighing about 35 lbs., there are 9 of the 3 foot by 3 foot tables weighing 40 lbs and there are 22 of the 3 foot by 3 foot tables weighing 25 lbs. The chairs are metal type folding chairs and weigh about 15 lbs. each, and some weigh about 8 to 10 lbs. For the upstairs room the tables and chairs need to be carried about 40 feet from the supply closets. They are stored downstairs under the stairwell and have to be carried 60 feet. (Emphasis ours.)
Wayer was occasionally sent from the community center to help unload supplies at city hall. Wayer testified that 90% (and sometimes 100%) of his time at the community center (both before and after his heart problem) was spent setting up, breaking down, and cleaning rooms.
On August 26, 1984, Wayer, then a 51 year old male, went to the emergency room of DePaul Hospital complaining of chest pressure and malaise. He was admitted to the hospital because of the possibility that he had suffered a heart attack. He was released from the hospital on August 30th. On August 31st, he underwent a thallium stress test which showed that he suffered from arteriosclerotic heart disease and had suffered an earlier myocardial infarction (heart attack) that he had been unaware of. However, the test also showed that he had not suffered a heart attack on or immediately before August 26th. Wayer "did well" on the stress test. Dr. Joseph Drozda was Wayer's treating physician. He testified by deposition.
On September 5th, Wayer visited Dr. Drozda at his office. The doctor gave Wayer a note stating that he could return to work on September 10th. No restrictions were mentioned in the note. However, Dr. Drozda verbally advised Wayer, as he does all patients with this type of heart disease, to avoid certain activities, including the shoveling of snow.
Although initially restricted as to heavy lifting, work on ladders, and constant overhead painting (none of which caused a problem for Schenck), Wayer was back to performing his normal job duties within a couple of weeks of returning to work.
One evening in late November or early December of 1984, when Wayer was working alone at the community center, a snow occurred. He removed the snow by sweeping it off the sidewalks and steps with a push broom. After this episode, conscious of the doctor's verbal admonition not to shovel snow, he contacted Dr. Drozda and received a note dated December 5, 1984, stating, "Mr. Wayer has been strongly advised by me not to shovel snow." The next day he gave the note to Schenck.
A second snow later occurred during which Wayer was on duty at the community center with Lentz. During the first day of this snow, Lentz shoveled while Wayer worked inside. When Schenck arrived, he saw Lentz shoveling snow and asked Wayer why he was not outside helping Lentz shovel the snow. Wayer answered that he was working inside. Schenck replied that "it [shoveling snow] was part of the job." Wayer responded that he had a note from his doctor advising him not to shovel snow.
Wayer was scheduled to come in early the second day of the snow. He swept the snow with a push broom, then worked inside after Lentz arrived to shovel the snow. Wayer and Lentz later spread fertilizer to keep ice and snow off the walks. Lentz testified that shoveling the snow without help from Wayer did not create a hardship.
Following the second snow incident, Wayer spoke to Dr. Drozda over the telephone and explained to him that he had been asked to shovel snow again. Dr. Drozda then sent a letter dated January 21, 1985, to City Manager Evett stating, "... snow shoveling presents a significant danger to Mr. Wayer's health and well-being and that I have advised him strongly never to shovel snow again."
The letter was brought to the attention of Peterson, the public works director. Peterson then met with Schenck and Schneidpeter, the street superintendent, to discuss the letter. Only after he reviewed the letter from Dr. Drozda to Evett did Schenck believe Wayer's restriction against snow shoveling was permanent.
Peterson admits he made the decision to terminate Wayer based on Dr. Drozda's letter to Evett. His duties included overseeing the removal of snow from the areas surrounding the City's four buildings and directing the supervisors of the public works department who instruct and supervise the maintenance crew on snow removal. He considered snow removal an essential part of the job of maintenance crews at all four buildings. Peterson also thought that if Wayer could not shovel snow, he might not be able to do other manual labor. However, he did not ask either Wayer or Dr. Drozda if that was the case.
Following this meeting, Peterson met with Evett. He told Evett that because of his concern for Wayer's health and because Wayer could not shovel snow, he recommended terminating him. Based on this information, Evett approved Peterson's decision to terminate Wayer. On that same day without any City employee having a discussion with Wayer, Schenck told him he'd been dismissed.
Wayer was dismissed solely because of the two communications from his doctor indicating that he was unable to perform a duty of his position. No...
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