City of La Crosse Police and Fire Com'n v. Labor and Industry Review Com'n

• Court: Wisconsin Supreme Court
• Writing for the Court: DAY; SHIRLEY S. ABRAHAMSON
• Citation: City of La Crosse Police and Fire Com'n v. Labor and Industry Review Com'n, 407 N.W.2d 510, 139 Wis.2d 740 (Wis. 1987)
• Decision Date: 17 June 1987
• Docket Number: No. 85-1890,85-1890
• Parties: , 44 Empl. Prac. Dec. P 37,356, 2 A.D. Cases 928 CITY OF LA CROSSE POLICE AND FIRE COMMISSION, Petitioner-Appellant, v. LABOR AND INDUSTRY REVIEW COMMISSION, Respondent-Petitioner, Daniel Rusch, Petitioner.

Page 510

407 N.W.2d 510

139 Wis.2d 740, 44 Empl. Prac. Dec. P

37,356, 2 A.D. Cases 928

CITY OF LA CROSSE POLICE AND FIRE COMMISSION, Petitioner-Appellant, v. LABOR AND INDUSTRY REVIEW COMMISSION, Respondent-Petitioner Daniel Rusch, Petitioner.

No. 85-1890.

Supreme Court of Wisconsin.

Argued March 2, 1987.

Opinion Filed June 17, 1987.

Kenneth R. Kratz, Asst. City Atty., argued, with whom on the brief was Patrick J. Houlihan, City Atty., for petitioner-appellant.

David C. Rice, Asst. Atty. Gen., with whom on the briefs was Bronson C. Lafollette, Atty. Gen., for Labor and Industry Review Com'n.

James G. Birnbaum, argued, Ellen M. Frantz and Johns & Flaherty, S.C., La Crosse, for petitioner.

DAY, Justice.

This is a review of a decision of the court of appeals, La Crosse Police Comm. v. LIRC, 129 Wis.2d 430, 385 N.W.2d 516 (1986). The court of appeals reversed a decision and order of the circuit court of La Crosse county, Hon. Dennis G. Montabon, Circuit Judge, presiding, upholding a determination by the Labor and Industry Review Commission (Commission) that Daniel J. Rusch (Rusch) was discriminated against by the La Crosse Police and Fire Commission (PFC), contrary to the terms of the Wisconsin Fair Employment Act, sections 111.31-111.37, Stats. [All references in this opinion are to the 1979-1980 statutes unless otherwise indicated]. Rusch's complaint was brought in response to the PFC's decision not to hire Rusch as a police officer. The PFC's decision was based on the results of a pre-employment physical examination administered on Rusch.

The case raises three issues: (1) Could the Commission reasonably conclude that in order to be considered a "handicapped individual" within the meaning of the Wisconsin Fair Employment Act (Act), it is not necessary that an individual have an actual physical impairment, but it is sufficient if the employer merely perceives the individual as having such impairment? (2) Could the Commission reasonably conclude that a "weak back" is a disability or an impairment which an employer might perceive as being a handicap within the meaning of the Wisconsin Fair Employment Act? (3) If Rusch is handicapped within the meaning of the Wisconsin Fair Employment Act, was Rusch discriminated against based on that handicap or was the decision of the PFC proper under the exception to handicap discrimination outlined in the Act?

We conclude that, in order for the Commission to find that an individual is "handicapped" within the meaning of the Act, it is not necessary to find that the individual had an actual impairment. It is sufficient to find that the employer perceived that the individual was handicapped. We uphold the Commission's conclusion that Rusch was "handicapped" within the meaning of the Act because, although Rusch had no physical impairment, the PFC perceived that he was impaired, and the perceived impairment would qualify as a handicap. We also conclude that the Commission could reasonably have concluded that the PFC refused to hire Rusch because it perceived him to have a "weak back," and this impairment constituted a handicap. Finally, we conclude that Rusch was discriminated against on the basis of the perceived handicap, since it is apparent that the sole reason he was denied employment was the Employer's perception he was impaired. The City of La Crosse cannot show that its action denying employment was legitimate under any statutory exception to handicap discrimination. We therefore reverse the decision of the Court of Appeals.

On May 14, 1981, Rusch applied for employment with the City of La Crosse as a police officer. In September, 1981, Rusch was orally offered employment as a police officer by Captain Frick of the Police Department, subject to a physical examination. He accepted the offer.

Rusch underwent a physical examination on September 18, 1981, during which he was required to perform a test of back strength on a "Cybex" machine. The Cybex machine used measures the strength and flexibility of the flexor and extensor muscles of the back. Alphabetical scores are given based on performance. ¹

Rusch received a "B" rating with the following notation: "Qualified for any work with the following restrictions: 1. Back conditioning exercise program before undertaking heavy labor."

On September 21, 1981, the PFC personnel director recommended to the police chief that Rusch not be hired, due to his "B" rating. ² Rusch was informed that he would not be hired because of the Cybex test results.

Rusch contacted the personnel director. At Rusch's suggestion, the personnel director contacted a physical therapist at the University of Wisconsin--La Crosse who was familiar with the Cybex machine. Following that conversation, the personnel director arranged for a second test to be taken. On September 28, 1981, Rusch took the Cybex test for a second time and received an "A" rating. By letter dated September 30, 1981, the PFC personnel director informed the PFC of the results of the second test. The personnel director also informed the PFC members that in a discussion with an individual at the University of Wisconsin familiar with the Cybex machine he was told that: (1) "the test has not been completely validated on some back movements" and (2) if an individual "passes" a second Cybex test after "failing" the first, the results of the first test should be disregarded.

Despite the foregoing information, on November 12, 1981, the PFC decided that Rusch would not be placed on the eligibility list for police officers because he had not successfully passed the first Cybex test.

On December 8, 1981, Rusch filed a handicap discrimination complaint with the Department of Industry, Labor and Human Relations (DILHR), charging that he was denied employment as a police officer "because of an alleged weak back disclosed by a Cybex machine." The complaint was brought pursuant to the terms of the Act, sections 111.31-111.37, Stats.

Following an investigation, the department's investigator rendered an initial determination on January 8, 1982, finding probable cause to believe that the PFC had discriminated against Rusch because of handicap, in violation of the Act. A letter dated December 16, 1981, sent by Robert Hackner, President of the PFC, to the department investigator stated that the PFC concluded Rusch should not be hired "because the Cybex Test 'B' rating indicated back deficiencies which possibly would not permit him to adequately perform physical duties required of a La Crosse Police Officer." Efforts at conciliation between the parties were either "waived or unsuccessful," and a hearing was conducted before a department hearing examiner on January 12, 1983.

By decision dated July 19, 1983, the DILHR hearing examiner concluded, as a matter of law, that: (1) Rusch was "not handicapped within the meaning of the Act" and, (2) Rusch has "proved by a preponderence [sic] of the evidence that [City of La Crosse, PFC] violated the Wisconsin Fair Employment Act in its failure to hire complainant because of an alleged/perceived handicap." The hearing examiner ordered that the City of La Crosse hire Rusch as a police officer and that he receive back pay "to which he would have been entitled from May 1981 but for the unlawful discrimination."

On January 18, 1984, the full Commission affirmed the examiner's decision, but issued a revised opinion (included findings of fact, conclusions of law and an order) which was intended to clarify the position of the Commission. ³ The Commission concluded, as a matter of law, that Rusch "was at all times relevant to his complaint handicapped within the meaning of the Act in that [City of La Crosse, PFC] perceived him to be handicapped." In addition, the Commission concluded, as a matter of law, that the PFC discriminated against Rusch on the basis of handicap when it denied him employment and, therefore, violated the Fair Employment Act.

The Commission ordered that Rusch be placed on the top of the police patrolman eligibility list, ⁴ that he be offered "immediate hire," and that if he accepted the offer he would be entitled to all employment benefits "from the date next following the date of [the PFC's] October, 1981 official monthly meeting" until the date Rusch was "instated as a police officer." The Commission also ordered that Rusch receive "lost wages" from October, 1981, until Rusch was "instated as an officer" or declined the offer of employment. Amounts earned by Rusch during the interim period would operate to reduce back pay otherwise allowable. The Commission also ordered that Rusch would not be eligible for back pay during the period he was a full-time college student, from January 1, 1982, to August 6, 1982.

The PFC then commenced proceedings for judicial review of the Commission's decision in the La Crosse county circuit court, pursuant to ch. 227, Stats., on February 15, 1984. The PFC appealed from that portion of the Commission's order requiring that Rusch receive back pay, and the conclusions of law that Rusch was handicapped within the meaning of the Act and that the PFC discriminated against Rusch on the basis of being handicapped. Rusch also petitioned for review of the Commission's order excluding back pay from January 1, 1982 through August 6, 1982. The cases were consolidated. On July 10, 1985, the circuit court affirmed the Commission's decision on the merits, but remanded the case for further findings of fact concerning Rusch's eligibility for back pay during the period he was a full-time college student.

The circuit court relied on American Motors Corp. v. LIRC, 119 Wis.2d 706, 712, 350 N.W.2d 120 (1984), where this court stated:

"The decisions in Chicago [Chicago, M. St. P. & P.R.R. Co. v. ILHR Dept., 62 Wis.2d 392, 215 N.W.2d 443 (1974) ] and Dairy Equipment [Dairy Equipment Company v. ILHR Department, 95 Wis.2d 319, 290 N.W.2d 330 (1980) ], therefore, indicate that in order to be considered handicapped...