Colorado Civil Rights Com'n v. North Washington Fire Protection Dist.

Decision Date17 April 1989
Docket NumberNo. 87SC432,87SC432
Parties2 A.D. Cases 1545 COLORADO CIVIL RIGHTS COMMISSION, Petitioner, and Dominic J. Gargano and Stephen S. Reffel, Complainants, v. NORTH WASHINGTON FIRE PROTECTION DISTRICT, Respondent.
CourtColorado Supreme Court

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Mary Ann Whiteside, First Asst. Atty. Gen., Denver, for petitioner.

Berger & Rothstein, P.C., David Berger, Commerce City, for respondent.

Legal Center Serving Persons with Disabilities Chester R. Chapman, Director of Legal Services Lynn L. Palma, Sr. Atty., Denver, for amicus curiae.

VOLLACK, Justice.

In Gargano v. North Washington Fire Protection District, 754 P.2d 393 (Colo.App.1987), the court of appeals reversed the decision of the Colorado Civil Rights Commission (Commission) and held that the North Washington Fire Protection District (District) did not engage in a discriminatory or unfair labor practice in violation of section 24-34-402(1)(a), 10A C.R.S. (1988), when it disqualified two of ten applicants for entry level firefighter positions because of a previously injured knee in the case of Stephen S. Reffel and uncorrected eyesight 20/40 or poorer in the case of Dominic J. Gargano.

We granted certiorari to determine whether Reffel and Gargano (applicants) were "handicapped" within the meaning of section 24-34-301(4), 10A C.R.S. (1988), and, if so, whether the District's medical disqualifications of the applicants were reasonable under section 24-34-402(1)(a). We conclude that the applicants were handicapped within the meaning of section 24-34-301(4) and applicable Colorado regulations because the applicants were perceived to be handicapped by the District. Genuine disputes remain as to whether the District refused to hire the applicants "because of handicap" and whether the District met its burden of showing the disqualifying factors were reasonable under the "business necessity" defense. We therefore reverse the judgment of the court of appeals and remand the case to the court of appeals with directions to remand the case to the court of appeals with directions to remand the case to the Commission for further hearings.

I.

The applicants applied in January 1980 for an entry level firefighter position with the District. Both applicants passed a written examination, strength and agility test, and personal interview. They were informed by the District Civil Service Committee in May 1980 that for one year their names would be placed on an "eligibility roster" for an entry level firefighter position. The eligibility roster was composed of ten persons ranked according to their scores on the tests and interview. Reffel was ranked fifth and Gargano was ranked tenth.

In March 1981, the ten applicants were directed to undergo a physical examination pursuant to rules promulgated by the Denver Civil Service Commission. They were examined by Dr. C. J. Roberts, the District medical examiner. Dr. Roberts learned that Reffel had injured his right knee in 1977 while playing basketball. Reffel had undergone surgery in 1977 to correct the basketball injury and again in 1980 to remove floating tissue fragments that had caused the knee to "lock up." Since then, Reffel had experienced no stiffness or locking up, and regained strength and flexibility in the knee. His health was otherwise excellent. At the time he was examined by Dr. Roberts, Reffel played racquetball and ran daily, and performed knee bends with three hundred pound weights on his shoulders.

Dr. Roberts realized that District regulations required disqualification of applicants with legs not free from stiffness or impairment of the joints unless the physical deficiency is waived by the medical examiner and approved by the Commission. 1 Dr. Roberts duly noted the injuries to Reffel's knee in his report.

Dr. Roberts also noted in his report that Gargano's uncorrected eyesight was 20/40 or poorer. 2 Gargano's eyesight was correctable with glasses or contact lenses to 20/20.

Each applicant was permitted to supplement the District medical examiner's evaluation with statements of other physicians concerning possible future effects of the deficiency on the job. Reffel provided letters from three physicians. All three agreed that to some extent Reffel's knee had degenerated since the most recent operation. 3 One doctor concluded that "there is no reason to believe Reffel would be unable to perform the job." 4 Another doctor concluded that, although Reffel "probably will have more difficulties with the knee" in the future, "the ultimate prognosis for this knee is fair to good." 5 A third doctor concluded that Reffel "should not be involved in work that puts stress on an already arthritic knee and he is best suited to a sedentary position." 6 Gargano provided a letter from a doctor who concluded that Gargano's vision is "certainly not hazardous to his proposed occupation as a fireman." 7

Two entry level firefighter positions were available on May 8, 1981, when the District Board of Directors met to consider the ten applicants on the eligibility roster. Reffel's name was removed from the eligibility roster because of his knee injury, and Gargano's name was removed from the eligibility roster because of his eyesight. The two entry level firefighter positions were then filled by the third and fourth applicants on the eligibility roster. 8 The eligibility roster expired the next day. Reffel and Gargano were informed of their medical disqualifications on May 11, 1981.

Reffel and Gargano filed separate charges of employment discrimination with the Commission in August 1981. They alleged that they were handicapped within the meaning of section 24-34-301(4). Their claims were founded not on the basis of "having" a physical impairment which substantially limits one or more of a person's major life activities, but on the basis that they were "being regarded [by the District] as having such an impairment." After the Commission found there was probable cause to believe that the District engaged in discriminatory or unfair labor practices against the applicants in violation of section 24-34-402(1)(a), the cases were consolidated and submitted to a Commission hearing officer (now called an administrative law judge) on stipulated facts with additional testimonial and documentary evidence provided by all parties. The District filed a motion for summary judgment, contending that the applicants were neither handicapped nor perceived to be handicapped. The District also claimed it was justified in disqualifying the applicants for medical reasons to ensure the safety of themselves, other firefighters, and the public. The applicants also moved for summary judgment.

On January 19, 1984, the hearing officer granted in part the applicants' motion for summary judgment. He concluded that both Reffel and Gargano were handicapped within the meaning of section 24-34-301(4), 9 but determined that a genuine dispute remained as to whether the District's medical disqualifying factors were reasonably related to the entry level firefighting job. He ordered a hearing on the issue of the reasonableness of the medical disqualifying factors.

Both the District and the applicants appealed the hearing officer's decision to the Commission. On March 8, 1985, the Commission affirmed the decision of the hearing officer in part and reversed in part. It agreed with the hearing officer that the applicants were handicapped within the meaning of section 24-34-301(4). It also concluded, however, that as a matter of law the District's disqualifying factors were not reasonably related to safety of themselves, other firefighters, or the public, because the disqualifying criteria "had never been empirically validated and because current [firefighters] are not held to the same medical-physical standards required of new applicants." 10 The Commission concluded that the District had engaged in a discriminatory employment practice in violation of section 24-34-402(1)(a) and granted the applicants' motion for summary judgment in its entirety. 11 The Commission ordered the District to hire the applicants when the next two positions arose and to pay them back pay, fringe benefits, and interest.

Having exhausted administrative remedies, the District sought judicial review of the Commission's decision in the court of appeals. The court of appeals reversed the Commission decision in Gargano v. North Washington Fire Protection District, 754 P.2d 393 (Colo.App.1987). The court of appeals disagreed with the conclusion of the hearing officer and Commission that the applicants were "handicapped" within the meaning of section 24-34-301(4). The court of appeals concluded that there was no evidence to support the contention that the District regarded the applicants as being " 'substantially' limited in any 'major life activity.' " 754 P.2d at 395. Instead, the court of appeals held that the District simply regarded the applicants "as limited only with regard to specific job-related functions and risks of fighting fires." Id. Because neither applicant alleged that his particular physical impairments limited him in any way other than in obtaining employment as a firefighter, the court of appeals concluded that Reffel and Gargano failed to demonstrate that their physical deficiencies imposed a "substantial limitation" of any "major life activity," and were therefore not handicapped within the meaning of section 24-34-301(4). Id. at 395-96. The court of appeals held that the Commission abused its discretion in finding that the applicants were handicapped and ordered the applicants' claims to be dismissed.

II.

Section 24-34-402(1)(a) of the Colorado Antidiscrimination Act (Colorado Act) provides that the following is a discriminatory or unfair employment practice:

For an employer to refuse to hire, to discharge, to promote or demote, or to discriminate in...

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